E-Regulation

Sharon Yadin

38 Cardozo Arts & Entertainment Law Journal, forthcoming 2020


 

The new face of the regulatory state is digital. In this era of e-regulation, administrative agencies use social media, web platforms, and mobile applications for regulatory purposes. New forms of online communication allow regulators to harness public opinion as an enforcement mechanism in such diverse areas as product safety, environmental protection, workplace injury prevention, customer satisfaction with financial services, child safety, restaurant sanitation, and health service quality. Tweets and posts, rankings, scores, star-ratings, and various other online naming-and-shaming and data-sharing practices serve to enforce compliance and promote corporate social responsibility. 

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Regulatory Literacy: Rethinking Television Rating in the New Media Age

Tali Teeni-Harari & Sharon Yadin

 88 University of Missouri-Kansas City Law Review, forthcoming 2020 


Rating systems for the regulation of television programs currently address parents, advising them of the presence of content considered inappropriate for children so that they can screen what their children watch. However, today’s children increasingly choose television content on their own, as parental supervision is consistently declining. This essay argues that the existing regulatory regime for rating television content is unsuited to the present-day viewing styles of youngsters, and presents policy recommendations.

 

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Regulatory Shaming

Sharon Yadin

49 Environmental Law (Lewis & Clark) 407, 2019


 

Should the government engage in public shaming? This Article is the first to define and explore an intriguing practice—“regulatory shaming.” Regulatory shaming refers to the publication of negative information by administrative agencies concerning private regulated bodies, mostly corporations, in order to further public-interest goals. For instance, regulatory agencies such as the Occupational Safety and Health Administration send out condemning press releases and use social media to publish workplace safety violations with the names of responsible companies, while the United States Securities and Exchange Commission and the Food and Drug Administration shame companies for high internal pay gaps and for blocking competition in the pharmaceutical industry. The United States Department of Health and Human Services rates nursing homes on a one to five star scale, and the United States Environmental Protection Agency assigns color ratings to factories according to level of compliance with environmental regulation. 

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Saving Lives Through Shaming

Sharon Yadin

9 Harvard Business Law Review Online 57, 2019


 

The Occupational Safety and Health Administration (OSHA) routinely employs shaming tactics toward employers, using public denunciations disseminated through social media, press releases, and online databases. These tactics, termed by the agency “regulation by shaming,” aim to name and shame companies into compliance with worker-safety regulations. In the face of heavy criticism of this practice, as well as legislative initiatives that aim to scale back OSHA’s regulation by shaming, this Article argues not only that shaming employers is an important regulatory tool that can help save workers’ lives, but also that OSHA’s “provocative” shaming tactics are in fact soft in comparison to other forms of regulatory shaming, and should be amplified.

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Shaming Big Pharma

Sharon Yadin

36 Yale Journal on Regulation Bulletin 131 (2019)


The FDA recently published a list of top branded drug companies that are suspected of purposely blocking competition from the generic drug industry. Calling out big pharma by “naming and shaming” them into good behavior is an innovative, still largely experimental, regulatory tool designed to harness public opinion and build on pharma’s reputational sensitivities. This Essay analyzes the FDA’s new initiative as a form of regulation by shaming, points to crucial flaws in the agency’s use of the tactic, and suggests key points for improvement.

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Regulation & The Separation of Powers

Ariel L. Bendor & Sharon Yadin

28 Southern California Interdisciplinary Law Journal 357 (2019)


 

This essay argues that current regulatory roles of administrative agencies, Congress, and courts are not fully consistent with separation of powers principles. Regulatory agencies often hold all three governmental functions, including judicial-like punitive sanctioning powers and comprehensive legislative powers for setting major regulations, with almost no supervision by other branches of government. Courts tend to grant de facto immunity from judicial review to many regulatory actions of administrative agencies under different types of deference doctrines, while Congress holds merely supervisory veto power over regulations. Executive regulatory functions are also misallocated, as decisions in specific cases with particular applicability are sometimes made by the legislative branch via enactment of laws, rather than by agency action. This essay suggests an innovative theory, both descriptive and normative, of the relationship between regulation and the separation of powers, bringing together constitutional law, administrative law, and regulation scholarship.

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Too Small to Fail: State Bailouts & Capture by Industry Underdogs

Sharon Yadin

 43 Capital University Law Review 889 (2015)


Bailouts have become a pervasive phenomenon, particularly around the 2008 global financial crisis, as states came to the rescue of financial institutions considered Too Big to Fail (TBTF) faced with imminent bankruptcy. While TBTF bailouts are officially designed to prevent catastrophic domino effects in markets, critics view these bailouts as a result of industry manipulations of regulators and state officials, leading to regulatory capture.  While the phenomenon of regulatory capture by large and resourceful firms is well researched by economists, jurists, and political scientists, a new unexplained phenomenon, yet to be addressed in academic literature, is emerging in modern economies: the bailout of small firms. 

 

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Israel’s Law & Regulation After the Gas Discoveries

Sharon Yadin

Israel: Values, Effectiveness, Methods (Eyal Tevet et al eds., Palgrave Macmillan: New York, forthcoming 2020) 


In 2016, the Israeli High Court of Justice (HCJ) delivered its most influential ruling on administrative regulation to date. Following the biggest natural gas discoveries in Israeli history, by a group of multinational energy corporations, the court was requested to rule on the legality of a contractual regulatory arrangement made between these corporations and the government of Israel. In this ruling (HCJ 4374/15 The Movement for Quality of Government v. The Prime Minister of Israel (2016)), five Supreme Court judges discussed extensively, and for the first time in this magnitude, the regulatory functions of Israel’s administrative authorities.