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Full-Text Articles in Law

Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp Feb 2018

Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp

Faculty Scholarship

Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. Mergers can also injure competition in markets where the firms purchase. Although that principle is widely recognized, very few litigated cases have applied merger law to buyers. This article concerns an even more rarefied subset, and one that has barely been mentioned. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries ...


The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters Feb 2018

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship

Auer deference holds that when agencies interpret their own pre-existing regulations, they receive deference from reviewing courts. The doctrine serves a critical function in the administrative process, obviating the need for agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary and guaranteeing that agencies’ good faith exercise of interpretive discretion will be respected by courts. But for some leading scholars and jurists, this benign-sounding doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation-of-powers norms in the process. This “perverse incentives thesis” has become increasingly influential ...


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff Feb 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp Feb 2018

Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp

Faculty Scholarship

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of ...


Taxprof Article Of The Week: Serge Martinez (New Mexico), Why Are We Doing This? Cognitive Science And Nondirective Supervision In Clinical Teaching, Serge Martinez Jan 2018

Taxprof Article Of The Week: Serge Martinez (New Mexico), Why Are We Doing This? Cognitive Science And Nondirective Supervision In Clinical Teaching, Serge Martinez

Faculty Scholarship

Weekly Legal Education Roundup's article of the week is Serge Martinez's, "Why are We Doing this? Cognitive Science and Nondirective Supervision in Clinical Teaching."

Read full article here: http://digitalrepository.unm.edu/law_facultyscholarship/483/


Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason Jan 2018

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

Faculty Scholarship

In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.


Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson Jan 2018

Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson

Faculty Scholarship

Article by Michael Coleman

Quote:

Reed Benson, a University of New Mexico professor specializing in water law, said the Supreme Court’s task in deciding the U.S. government’s role is “very legalistic – very much a technical reading of what is and is not in the compact.”

“I actually have thought that New Mexico’s chances in front of the nine justices may be a little bit better than some people thought,” Benson said. “Some of those justices may be persuaded by the plain text argument – that New Mexico’s obligations are measured at Elephant Butte and once New ...


Prophylactic Merger Policy, Herbert J. Hovenkamp Jan 2018

Prophylactic Merger Policy, Herbert J. Hovenkamp

Faculty Scholarship

An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there ...


What Does Immigration Status Have To Do With Law School, Maryam Ahranjani Jan 2018

What Does Immigration Status Have To Do With Law School, Maryam Ahranjani

Faculty Scholarship

Young people who are undocumented are underrepresented in higher education in general and in law school in particular. Some states offer instate tuition and other supports for undocumented students, but more support is needed for undocumented students.


Ask A Director: Reporting Accomplishments, Caroline L. Osborne Jan 2018

Ask A Director: Reporting Accomplishments, Caroline L. Osborne

Faculty Scholarship

None available.


Securing Professional Development: Getting To Yes, Caroline L. Osborne, Carol A. Watson, Amy J. Eaton Jan 2018

Securing Professional Development: Getting To Yes, Caroline L. Osborne, Carol A. Watson, Amy J. Eaton

Faculty Scholarship

None available.


Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy Jan 2018

Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy

Faculty Scholarship

No abstract provided.


Responsive Regulation And Resiliency: The Renewable Fuel Standard And Advanced Biofuels, Nadia B. Ahmad Jan 2018

Responsive Regulation And Resiliency: The Renewable Fuel Standard And Advanced Biofuels, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.


Gerrymandering And Conceit: The Supreme Court's Conflict With Itself, Mckay Cunningham Jan 2018

Gerrymandering And Conceit: The Supreme Court's Conflict With Itself, Mckay Cunningham

Faculty Scholarship

In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the ...


Progressive Antitrust, Herbert J. Hovenkamp Jan 2018

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah Jan 2018

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must ...


Copyright As Market Prospect, Shyamkrishna Balganesh Jan 2018

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic ...


On The Disparate Treatment Of Business And Personal Salt Payments, Michael S. Knoll Jan 2018

On The Disparate Treatment Of Business And Personal Salt Payments, Michael S. Knoll

Faculty Scholarship

The Tax Cuts and Jobs Act, H.R. 1, would eliminate the federal income tax deduction for nonbusiness state and local taxes while maintaining the deduction for business state and local taxes. That disparate treatment has generated a storm of negative commentary. In this short essay, I consider whether the federal tax law should allow a deduction for business state and local taxes assuming that there is no deduction for nonbusiness state and local taxes. I argue that investors and businesses, including pass-through businesses, should be allowed to deduct state and local property and sales taxes, but not general income ...


Community Engagement And Social Activism In Legal, Aliza Organick Jan 2018

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.


Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress.

The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel ...


U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley Jan 2018

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a ...


Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu Jan 2018

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

Faculty Scholarship

In "The Dignity of Commerce", Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other ...


If We Allow Football Players And Boxers To Be Paid For Entertaining The Public, Why Don't We Allow Kidney Donors To Be Paid For Saving Lives?, Philip J. Cook, Kimberly D. Krawiec Jan 2018

If We Allow Football Players And Boxers To Be Paid For Entertaining The Public, Why Don't We Allow Kidney Donors To Be Paid For Saving Lives?, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

We contrast the compensation ban on organ donation with the legal treatment of football, boxing, and other violent sports where both acute and chronic injuries to participants are common. Our claim is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a ...


Treaty Exit And Intra-Branch Conflict At The Interface Of International And Domestic Law, Laurence R. Helfer Jan 2018

Treaty Exit And Intra-Branch Conflict At The Interface Of International And Domestic Law, Laurence R. Helfer

Faculty Scholarship

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the same effects in both legal systems, but some withdrawals bifurcate a treaty’s status, ending its obligations in domestic law but continuing to bind the state internationally, or vice versa. The second issue concerns denunciations initiated by different branches of government. The decision to withdraw from a treaty is ...


Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz Jan 2018

Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz

Faculty Scholarship

To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with derivatives and commodity exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical ...


Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith Jan 2018

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this ...


The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy Jan 2018

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty ...


Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell Jan 2018

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium ...


Taking The 30,000-Foot View: Seeing What You've Written, Tenielle Fordyce-Ruff Jan 2018

Taking The 30,000-Foot View: Seeing What You've Written, Tenielle Fordyce-Ruff

Faculty Scholarship

In thinking about a topic for this column, I took a moment to look back over what I've covered since I started writing for The Advocate. I saw a huge range of topics-- word choice to punctuation to parts of speech to document design. I've even covered proofing techniques. I saw one huge hole, however. I've never written about how to edit to ensure your legal writing is complete. So for this month I'll explore a little bit of why self-editing is so difficult, followed by some discrete tasks each legal writer can use to ensure ...


Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron Jan 2018

Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron

Faculty Scholarship

No abstract provided.