Revising and Re-Orienting the Standard Model

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 4, Issue 1 along with a link to an electronic copy of the full form of the piece. 

This paper undertakes a detailed analysis of today’s standard theory of the philanthropic sector to provide a new model that is both more accurate in its details and more comprehensive in its scope. The standard theory sees the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. That approach has a fundamental short-coming: its explanation of both the state and philanthropy as adjuncts to the market fails to appreciate the ways in which all three sectors support and supplement each other. The standard model’s primary focus on the market ignores how the demands that we make on both the state and the market ultimately derive from value systems the philanthropic sector not only gives us, but also prepares us to accept. From this perspective, the philanthropic sector functions, not as an adjunct to the state and the market, under those sectors’ standards of consumer demand and majority preference, but rather as both their foundation and their metric.

Find the full version of this article in PDF form here

Rob Atkinson is a Ruden McClosky Professor at Florida State University College of Law.

Blind Trusts as a Model for Campaign Finance Reform

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 4, Issue 1 along with a link to an electronic copy of the full form of the piece.

This paper explores the viability of blinds trusts as a means of reducing corruption in campaign finance. The prevention of corruption and the appearance of corruption has bedeviled the United States government since the nation’s founding. The public frequently perceives government’s shortcomings as rooted in candidates’ ties to their donors. Blind trusts legitimize the campaign finance process from within, working in tandem with existing campaign finance restrictions. The voluntary use of blind trusts in campaign finance reform is a means to prevent both the real and perceived corruption commonly associated with campaign donations, while enabling candidates to fund their campaigns.

Find the full version of this article in PDF form here.

Mr. Perry Pirsch is with the Berry Law Firm of Lincoln, Nebraska. He previously served as the Assistant Attorney General for the State of Nebraska. 

Behavioral Exploitation Antitrust in Consumer Subprime Mortgage Lending

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 4, Issue 1 along with a link to an electronic copy of the full form of the piece.

We analyze whether antitrust provides a favorable alternative and perhaps superior approach to regulating consumer subprime mortgage lending. Behavioral exploitation antitrust targets commercial conduct of the sort that was observed in consumer subprime mortgage lending in the years leading up to 2007. The negative effects to welfare of exploitation of the subprime mortgage market are easily observed. Antitrust-based regulation can mitigate those welfare effects. Regulation that does exist, which operates at the level of the individual transaction, may be easily avoided, may be short-sighted, may suffer from enforcement problems explained by public choice theory, and/or may overreach in its capacity to remove consumer choice. We show that antitrust enforcement under a rule of reason approach avoids those pitfalls. However, none of the three primary approaches to antitrust enforcement – prohibitions of anticompetitive conduct by a dominant firm, prohibitions of anticompetitive agreements, and prohibitions of mergers with incipient anticompetitive effects – in their current forms permit resort to antitrust remedies in the consumer subprime mortgage market. We argue that liberalized standards for antitrust enforcement under both Clayton Act section 7 (regulating mergers) and Sherman Act section 1 (regulating concerted conduct), perhaps restricted narrowly to this and closely analogous markets, would be appropriate to gain the benefits of regulation through behavioral exploitation antitrust.

Find the full version of this article in PDF form here.

Max Huffman is an Associate Professor and Dean’s Fellow at Indiana University Robert H. McKinney School of Law. Daniel B. Heidtke is a Fellow at Institute for Consumer Antitrust Studies, Loyola University Chicago, School of Law.

The Social and Cultural Context of Mountaintop Removal Mining as Seen Through the Lenses of Law and Documentaries

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 4, Issue 1 along with a link to an electronic copy of the full form of the piece.

Mountaintop removal is a form of mining that has major effects on the ecology and people of central Appalachia. The practice has gained increased attention from the U.S. Environmental Protection Agency (EPA) and popular cultural sources as an environmental justice issue. Recent decisions by the EPA incorporate an environmental justice analysis as contextualization, but the agency’s perspective is problematic. This article compares the way that the social and cultural context of mountaintop removal has been framed in judicial opinions and EPA documents to understand how legal documents address and perpetuate the conflicts related to mountaintop removal. To further widen the lens, seven documentary films on mountaintop removal are surveyed to understand how these films portray the conflict and the role of law. Juxtaposing these popular cultural sources with the legal documents provides for a more informed environmental justice perspective. The article concludes by suggesting that goals of environmental justice in Appalachia could most appropriately be advanced by supporting communities’ efforts to access and build the type of expertise that is necessary to effectively participate in the regulatory process.

Find the full version of this article in PDF form here.

Evan Barret Smith is a Law Clerk for the Honorable John M. Rogers, U.S. Court of Appeals for the Sixth Circuit.

 

The Interagency Suspension and Debarment Committee, the Nonprocurement Common Rule, and Lead Agency Coordination

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 4, Issue 1 along with a link to an electronic copy of the full form of the piece.

The Interagency Suspension and Debarment Committee (ISDC) is a unique governmental body whose responsibilities are directed by both the executive and legislative branches. But this was not always the case. Prior to 2008, the ISDC remained largely an obscure organization unknown to anyone outside of the Office of Management and Budget (OMB) or the agency personnel charged with handling suspension and debarment matters. Legislation in 2008 changed all of this by requiring the ISDC to designate an agency to take the lead on a suspension or debarment action where more than one agency had an interest, and to also report annually to Congress on suspension and debarment issues. These responsibilities, although new, were years in the making and the result of several legislative efforts since 2002 that had alternatively died in committee or were objected to by the OMB.

This Article reviews the historical foundation for a uniform suspension and debarment system dating back to the 1960s and leading up to the creation of the ISDC in 1986. This Article also explores how the ISDC’s influence grew to include both nonprocurement and procurement suspension and debarment matters, as well as how a lead agency is designated for a suspension or debarment action. Special attention is also given to assessing the ISDC’s success in performing its 2008 statutory responsibilities, including the coordinating and staffing difficulties that prevented the ISDC from timely meeting its reporting obligation to Congress. Also analyzed is recent guidance from the OMB directing greater executive agency participation in the ISDC, as well as current Congressional appropriations and contingency contracting initiatives that could potentially complicate the ISDC’s coordinating functions.

This Article concludes with several recommendations the ISDC should take to improve its functioning, enhance its credibility, and restructure its leadership and mission. Specifically, the ISDC should continue its efforts to fully unify non-procurement and procurement suspension and debarment practices, establish formal guidelines by which lead agencies are selected, revitalize the ISDC website with fully accessible suspension and debarment content, address the need for permanent staffing, and assess the selection and priorities of future leaders of the ISDC. Implementing these recommendations will better enable the ISDC to remain at the forefront of the suspension and debarment field.

Find the full version of this article in PDF form here.

Brian Young is an LLM Candidate at the George Washington University.