Edward L. Rubin

Images of Organizations and Consequences of Regulation

Government can control conflicts of interest in business firms by either issuing obligatory commands to behave in a specified way or by creating incentives to alter private behavior. In order to choose between these two approaches, we also need to know something about the nature of the subject firms and the way that they are likely to respond to particular stimuli. Legislators and legal scholars often rely on intuition to predict the behavior of firms, but this will not suffice for such a complex situation. Fortunately, there is a well-developed body of scholarship that addresses organizational behavior; unfortunately, like many bodies of scholarship, it contains rival and conflicting approaches. This article discusses four of these approaches to organizational behavior: the nexus of contracts theory, an application of rational choice theory to corporations; decision theory; general systems theory and its recent autopoetic variants; and new institutionalism. It then uses each of these approaches to predict the way that firms will respond to obligatory commands and behavior incentives. The specific cases it discusses are the U.S. Sentencing Commission’s Organizational Sentencing Guidelines, the Sarbanes-Oxley Act, and contemporary compliance theory’s idea of reasonable, responsive, or cooperative enforcement.

Minimizing harm : a new crime policy for modern America

Introduction: Minimizing Harm as a Solution to the Crime Policy Conundrum (Edward L. Rubin) Public Attitudes Toward Crime: Is American Violence a Crime Problem? (Franklin E. Zimring and Gordon Hawkins) Prevention: The Cost-Effectiveness of Early Intervention as a Strategy for Reducing Violent Crime (Peter W. Greenwood) Alternative Sanctions: Diverting Non-Violent Prisoners to Intermediate Sanctions: The Impact of Prison Admissions and Corrections Costs (Joan Petersilia) Drug Policy: Drug Enforcement, Violent Crime and the Minimization of Harm. (Jerome Skolnick)

Communing with Disaster: What We Can Learn from the Jusen and the Savings and Loan Crises

Now that the Japanese economic miracle has soured into the Japanese economic meltdown, scholars are confronted with a new challenge: instead of trying to penetrate the secret of Japan’s successes, they must try to unravel the enigma of its misfortunes. Professors Curtis Milhaupt and Geoffrey Miller (1997) have performed a great service in documenting one of the most dramatic of those misfortunes – the collapse of the jusen companies. Professor Shinsaku Iwahara (1997) has also performed an equally valuable service by placing this event in the larger context of Japanese politics and society. But despite its record setting scale, the jusen problem was not unprecedented; Japan merely followed in the footsteps of its economic mentor, the United States, which experienced a very similar financial meltdown about a decade earlier. This commentary briefly describes that event – the U.S. savings and loan crisis – and then draws some tentative conclusions on the basis of a comparison of the two events.

Dynamic Statutory Interpretation in the Administrative State

Eskridges theory of dynamic statutory interpretation is addressed to courts, and makes a highly persuasive argument, but it is even more convincing with respect to the interpretive functions of administrative agencies. To begin with, agency adjudicators are closely connected to the policy functions of the agency. More importantly, agency rule making and enforcement activities are necessarily interpretive, since they are supposed to implement an enacted statute, and here dynamic statutory interpretation is the only plausible approach to such interpretation. The objections to statutory interpretation that Eskridge takes so seriously in his article - formalism, separation of powers, public choice and the countermajoritarian difficulty - are all insubstantial in the administrative rule making and enforcement context. Thus, when courts, which are Eskridges main concern, review agency decisions, as opposed to deciding common law cases, they are necessarily reviewing a dynamic interpretation. This does not require them to adopt dynamic statutory interpretation as their own approach, but it provides highly persuasive reasons for them to do so. The Chevron decision supports this approach. Although administrative agencies are a unique feature of the modern state, the necessity that they adopt a dynamic approach in their rule making and enforcement activities reveals a general feature of government that supports Eskridges theory, and that has been obscured by more traditional elements of legal doctrine.