Kenneth A. Bamberger

Keeping Imports Safe: A Proposal for Discriminatory Regulation of International Trade

The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers by contracting with foreign companies for the production of goods and the provision of services, the mix of economic, legal, and societal forces that serve to protect consumers changes. Widespread revelations of Chinese-manufactured toxic toys and toothpaste, tainted food and drugs from abroad, and the failure of foreign call centers to protect the privacy of U.S. consumer data all illustrate the challenge for domestic governance. Though international trade in goods and services provides clear economic benefits, it can also frustrate consumer protection efforts. This paper provides a conceptual framework for understanding the mix of regulatory elements that govern domestic production of goods and services, and for understanding the ways in which international trade changes that mix. Specifically, it distinguishes between two types of domestic regulation—the first targeting the process by which goods are produced and services provided, and the second mandating particular outcomes. Foreign production disables the first type of regulation and weakens the second. Protecting domestic consumers in a globalized market, then, will frequently require the development of “substitutes†– including regulation by foreign governments and private regulators — for domestic forms of governance that are ineffective abroad. We propose a novel and necessary solution for addressing the threat posed by the foreign production of goods and provision of services to consumer welfare. Specifically, we make the case that the best “substitute†for domestic regulation will often be oversight of safety issues by U.S. partners in global trade. To provide incentives to domestic firms U.S. regulators should make those firms legally accountable for harmful products that make it to the United States Furthermore, they regulations should discriminate between domestic and foreign activity in regulation requiring safe outcomes, imposing higher penalties for violations of safety norms when production has taken place abroad.

Normative Canons in the Review of Administrative Policymaking

Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress - norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separation of powers? One the one hand, courts have traditionally sought to protect these constitutionally inspired values by applying normative canons of construction. Such interpretive default rules - like reading statutes so as not to raise constitutional issues, not to preempt state tort protections, or not to affect tribal power detrimentally - provide a judicial means for resolving statutory ambiguity with background norms in mind. One the other hand, after the Supreme Courts Chevron decision, authority to interpret unclear regulatory statutes generally belongs, not to judges, but to agencies. This question has polarized courts and commentators. A majority, including the Supreme Court, adopt a categorical approach in which canons trump Chevron, displacing the agencys interpretive role altogether. A minority, including the Ninth Circuit, conclude the opposite: that courts should not apply canons, but leave full interpretive discretion to agencies. This Article rejects both categorical approaches. The first ignores the fact that, while normative canons are intended to promote judicial restraint in resolving political questions, they often give judges great discretion in deciding whether or not important background norms should, or should not, be protected, and in making broader public policy choices unrelated to the normative canon itself. Exercising that discretion, moreover, frequently involves assessments regarding the practical impact of those choices, and about the merits of administrative policy generally, which judges are often ill-suited to make. The minority approach, by contrast, recognizes that agencies - because of their policy expertise, their sensitivity to political forces, and their ability to provide a forum for representation and accommodation in policymaking - may sometimes provide the best location for reconciling policy goals with background norms. Yet it fails to provide agencies with any incentive to engage in such behavior, or reflect any discernment regarding when administrative capacity could be helpful, and when it would not. It constitutes, essentially, an abdication of responsibility for norm protection. The Article then proposes an alternate analytic framework. It argues that whether an agency policy comports with background norms should be considered as part of Chevrons case-by-case step-two inquiry into whether the policy is reasonable. Unlike the categorical approaches, this context-sensitive solution creates incentives for robust agency norm-protection in the first instance, but also permits courts to apply normative canons independently when administrative decisionmaking either offers little advantage, or fails to account for the background values it implicates. This solution also cabins judicial discretion to resolve broader policy questions, and compels courts to be clearer about when, and why, different canonic formulations should apply, and the implications for agency input. In sum, it best enlists the capacity of the administrative state to promote accountable and informed deliberation on the balance between regulatory goals and norms of constitutional dimension.

What regulators can do to advance privacy through design

Seeking to address the challenges of privacy by design through regulatory process and formal law.

Platform Market Power

The rise of the platform economy has been the subject of celebration and critique. Platform companies like Uber, Airbnb, and Postmates have been rightfully celebrated as positively disruptive, introducing much–needed competition in industries that have been otherwise over–mature and stagnant. However, some of the leading new platforms have had such meteoric success that their growing market dominance and technical capacity raise questions about new forms of anti-competitive practices, and negative impacts on consumer and employee welfare. In this Essay, we develop a framework for considering the market power of platform companies that use digital technology to connect a multi-sided network of individual users. Specifically, we use the example of Uber as a lens to identify eight questions that are important for assessing platform power. These questions address the way a range of issues play out in the platform context, including more traditional competition concerns around innovation, regulatory arbitrage, barriers to entry, and price setting through platforms’ use of the network form to coordinate transactions, the use of digital pricing, and the use of pricing bots. These questions also focus on new concerns about power derived from data collection and use; the use of data to expand into other markets; and the implications of market power for consumer choice about personal privacy. Together, these questions provide policymakers a framework to consider whether and how questions of market power (and competition more generally) may pose complexity or require analytic adjustments—and how the development of platforms implicates both new opportunities for, and challenges to, consumer and employee welfare in the digital context.

Chapter 10. Importers as Regulators Product Safety in a Globalized World

In the wake of scandals involving lead toys, toxic toothpaste, poisonous pet food, and other dangerous products in recent years, policymakers have proposed a variety of strategies that purport to address safety concerns. Though many of these proposals would have salutary effects on consumer product safety, they do not provide, either individually or collectively, a full solution to the problem. This chapter offers a different proposal for addressing the challenges that global production poses for state-centered regulation of import safety. We argue that regulators should structure administrative penalties to make private importers regulate the foreign manufacturing processes from which they benefit.Specifically, we make the case that where U.S. regulators expect a threat to consumer protection from foreign goods and services, they should augment the legal penalties imposed against foreign and domestic partners in international trade that are within the reach of American authorities. This enhanced threat of legal liability would serve to ensure that these parties act as de facto regulators of the foreign activity from which they benefit, even when those activities themselves are beyond the reach of American law. Trade in domestic goods and services would not trigger the same penalties because these products face regulation of the production process that, in principle, achieves the desired level of safety.