HUMAN RIGHTS & LABOR
SAVING LIVES THROUGH SHAMING
Sharon Yadin
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.
CONSUMER PROTECTION • INDUSTRY
HEALTH INSURANCE PLAN REGULATION AFTER THE AFFORDABLE CARE ACT: A COST-BENEFIT ANALYSIS COMPARISON
Marlan Golden
In a rapidly evolving healthcare landscape, particularly since the enactment of the Patient Protection and Affordable Care Act (ACA) in 2010, regulators have confronted a number of challenges in crafting general rules of prospective applicability for health insurance plans. These challenges include quantifying costs and benefits of regulatory actions that seem difficult to predict, monetizing certain benefits, satisfying the demands of a robust cost-benefit analysis regime, and accounting for heightened uncertainty in the healthcare markets and recently, on Capitol Hill.
CONSUMER PROTECTION
THE CFPB ARBITRATION RULE
Andrew Palmer
This paper analyzes the recent enactment and subsequent rescission of the Arbitration Agreements Rule1Arbitration Agreements, 82 Fed. Reg. 33,210 (July 19, 2017) (to be codified at 12 C.F.R. pt. 1040).(Arbitration Rule or Rule) promulgated by the Consumer Financial Protection Bureau (CFPB or Bureau), which bans the use of mandatory arbitration clauses in many types of financial contracts. Specifically, the paper will examine the life and death of the Rule through the lens of the types of cost-benefit analyses (CBA) undertaken by the Bureau in issuing the Rule. This analysis will consider the unique structure and administrative position of the CFPB, and use its authorizing legislation in the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act2Formally, the statute is the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010).(Dodd-Frank or DFA) to compare and contrast its cost-benefit analysis procedures with that of other administrative agencies, particularly in the financial regulatory space. Beyond the narrow scope of the application to the Arbitration Rule—and its rescission—this analysis will necessarily touch on larger constitutional, procedural, and governance challenges to the existence structure of the CFPB, a major contributor to the ire over the Rule in question.
BUSINESS & CORPORATIONS • CORPORATE LAW & GOVERNANCE
BEYOND THE BOARD: ALTERNATIVES IN NONPROFIT CORPORATE GOVERNANCE
William M. Klimon
The diversity of the nonprofit sector is manifold. There is great variety in organizational form; nonprofit organizations have long been structured as corporations, charitable trusts, and unincorporated associations. Now the Internal Revenue Service (IRS) has recognized the exempt status of standalone limited liability companies.3See Instructions for Part II, line 2 of IRS Form 1023. Likewise, the range of activities across the sector is stunning: healthcare, education, welfare, religion, the arts, and the environment. And even within those fields the diversity astounds: from a tiny free clinic to the Adventist Health System; from a new public charter school to Harvard University; from a Primitive Baptist chapel to the thousands of Roman Catholic congregations, orders, and organizations; from a community theater to the Metropolitan Opera. That immense diversity has affected even the relatively uniform world of nonprofit corporate governance.4See William M. Klimon, Recent Developments in Nonprofit Corporate Governance, in National Business Institute,Tax Exempt Organizations Boot Camp283, 303-04 (2016).