DOUGLAS A. KYSAR, Yale Law School
Email: douglas.kysar@yale.edu

To date, the turn toward market-based regulatory tools in the environmental, health, and safety context has tended to focus on taxes, tradable permits, and information disclosure rules, with comparatively little attention devoted to environmental assurance bonds. This paper argues that environmental assurance bonding offers a particularly attractive regulatory approach for contexts - such as the present state of nanoscale science and engineering - in which both the risk and the benefit sides of the regulatory equation are characterized by great uncertainty. Historical examples and existing scholarly analyses of environmental assurance bonding are reviewed, and the resulting lessons are situated within the larger debate over economic cost-benefit balancing and precautionary approaches to environmental law and policy. In particular, the paper argues that environmental assurance bonding displays the virtue of symmetric humility, paying due heed to the dynamism and complexity both of sociolegal systems such as markets and of biophysical systems such as aquatic ecosystems.

BENEDICT KINGSBURY, New York University - School of Law
Email: benedict.kingsbury@nyu.edu
STEPHAN W. SCHILL, affiliation not provided to SSRN

Investor-State arbitration is not only a mechanism to settle disputes between an investor and a State arising out of an investment, it is also a form of global governance that involves the exercise of power by arbitral tribunals in the global administrative space. In setting standards for State conduct vis-à-vis foreign investors, for example in defining what is improper administration or a violation of due process under fair and equitable treatment, tribunals set standards which may influence future conduct by the respondent State and other States, and will very likely influence the decision-making of tribunals in other cases. In settling disputes between investors and States, the tribunals also act as pre-agreed review agencies of a State’s specific actions, in some cases applying proportionality analysis or other tools of public law review when confronted with difficult balances between investor protection and the State’s environmental or economic policy choices in the wider public interest. In these respects, investor-State arbitration forms part of a governance structure, and helps constitute and shape the emerging body of global administrative law. At the same time, this regulatory activity of arbitral tribunals attracts significant criticism, not only of specific decisions but with regard to the legitimacy of the decision-making powers of these tribunals as such. This paper argues that these concerns can be addressed, at least in part, by application of principles of the emerging global administrative law to, and by, these tribunals.

AMANDA HOLLIS-BRUSKY, affiliation not provided to SSRN, University of California, Berkeley - Institute of Governmental Studies

This paper suggests that the Federalist Society for Law and Public Policy can be best understood as a type of legal epistemic community - a network of professionals with certain shared beliefs who, through their activities, work to implement those beliefs in law and policy. After establishing the Federalist Society as an epistemic community, it examines how actors affiliated with this conservative and libertarian legal network were able to insinuate certain shared network beliefs about the 'Unitary Executive' into some of the most controversial legal policies (Office of Legal Counsel opinions and Signing Statements) of the George W. Bush Administration.

JAMES D. KING, affiliation not provided to SSRN
Email: jking@uwyo.edu

“Change� was a prominent theme of the 2008 presidential campaign with both candidates emphasizing their credentials for altering the political environment. But does a campaign focused on change result in an administration different from its predecessors? We examine the Obama transition to identify similarities with and differences from previous administrations. Similarities include Obama’s structuring of advisors, patterns in personnel selections, and the role of the vice president. Key differences include a greater centralization of policy making, a higher proportion of former congressmen and governors as cabinet officers, and a higher proportion of nominations being challenged in the Senate. Thus an election about change produced an administration somewhat different but not radically different from its predecessors.

JOANA MENDES, Amsterdam Centre of European Law and Governance
Email: j.m.mendes@uva.nl

The Code of Good Administrative Behaviour has passed fairly unnoticed in academic research on the principle of good administration. However, it is an important source to understand the meaning of this principle and concept in European administrative law, since it encompasses some of its dimensions that tend to be overlooked by the case law of the European Courts and also by European law scholars. Furthermore, contrary to what recent developments let believe - namely, the fact that the Commission refuses to put forth a proposal for a European regulation that would make the provisions of the Code binding - the Code remains relevant to map possible legal developments regarding good administration.

The article explains the reasons and meaning of the link between the Code and Article 41 of the EU Charter of Fundamental Rights, analyses the complexity and uncertainty of the concept “good administration�, characterises its different legal and non-legal facets highlighting the interconnections between them. In addition, it demonstrates how these different layers are reflected in the Code, underlines the Code’s links with previous EU law developments, its added legal value and the functions it currently performs, considering also the different paths through which further legal, binding developments could derive from the Code.

STEPHEN M. JOHNSON, Mercer University Law School
Email: Johnson_s@law.mercer.edu

A few months ago, Professor Wendy Wagner published an article in the Indiana Law Journal that advocated a “competition-based�approach to regulate toxic chemicals and other substances. In her proposed system, a company could obtain a certification from EPA that a product that it produces is environmentally superior to a competitor’s product, based on an adjudication between the companies. This would create an advantage for the company in the market, as the product could be labeled as superior to its competitor. Under Professor Wagner’s proposal, in light of the information disclosed in the adjudication, EPA could also ban the inferior product or impose other limits on it, in addition to certifying the superior product. While Professor Wagner’s proposal centers on toxic chemicals, she suggests that “competition-based� regulation could be applied on a broader scale.

The attached article examines the advantages of Professor Wagner’s proposal and the challenges inherent in implementing it, and explores whether the proposal could be modified to minimize those challenges.

Professor Wagner’s “competition-based� regulation proposal is a combination of command and control regulation and market-based alternatives, and could combine the strengths of both approaches. However, Professor Wagner’s proposal may be very difficult to implement because it requires EPA to make a decision to certify a product as “superior� based on a vague, largely undefined standard. For all of the reasons that EPA has had difficulty setting “harm-based� standards under other regulatory programs, it is likely to have difficulty making the determination of whether one product is “superior� to another with regard to its environmental and health impacts. In addition, the proposal provides EPA with broad discretion to resolve difficult policy decisions regarding “superiority� with limited public input and allows the agency to hide those policy decisions from public view. Further, Professor Wagner proposes that the agency make the “superiority� decisions through the formal rulemaking process, a process which has long been out of favor with agencies and Congress because it is expensive and time consuming. Formal rulemaking is also a poor vehicle for resolving the difficult questions of fact and policy that will be central to a determination that one product is environmentally superior to another. Finally, the cumbersome rulemaking process, combined with the vague standard for “superiority�, raises “environmental justice� concerns.

MICHAEL T. DRISCOLL, The John Marshall Law School
Email: driscollmt@gmail.com

On January 21, 2009, President Barack Obama, in one of his first official acts in office, nullified George W. Bush’s controversial Executive Order 13233, which gave presidents, sitting and former, unprecedented powers to restrict public access to presidential records. In signing Executive Order 13489, Obama signaled his support for the principle of open government and tacitly rebuked the Bush administration for its favoritism toward secrecy.

Despite Obama's action, it is unclear how future administrations will treat presidential records. This paper argues that Congress should amend the Presidential Records Act to prevent abuses by codifying Obama's executive order and by strenghtening the role of the Archivist.

Part I of this paper briefly explores the historical treatment of presidential records since the founding of the republic. Part II discusses the Presidential Record Act's scope, intent, and its most important provisions. Next, Part III analyzes the challenges to the PRA since its implementation. Finally, Part IV provides recommendations to end the ambiguity toward the records.