Law Commons^™

Wto Dispute Settlement And Competition Law: Views From The Perspective Of The Appellate Body's Experience, Claus-Dieter Ehlermann

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The current discussions on a future framework for competition policy within the World Trade Organization ("WTO")have revealed reservations against the full application of the WTO dispute settlement system to such a framework. The current dispute settlement system of the WTO is one of the results of the Uruguay Round negotiations. For an international agreement of nearly universal scope, this system is unique in its obligatory and quasi-automatic character. In general, complaints can be brought to the WTO against national laws which fail to comply with WTO obligations and also against a WTO-inconsistent application of national laws in individual cases. The …

Worst Us Antitrust Decisions...Ever - Part Two, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Last month we invited a panel of three US lawyers to discuss some of the worst antitrust decisions of all time. We now conclude that series, with the second set of candidates for the 'Hall of Shame'. Read the opinions carefully--we'll be picking the worst of the worst in a website survey next month.

It’S Personal But Is It Mine? Toward Property Rights In Personal Information., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

“It’s Personal But Is It Mine? Toward Property Rights in Personal Information” discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens’ loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners.

In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating …

Did Reform Of Prudent Trust Investment Laws Change Trust Portfolio Allocation?, Max M. Schanzenbach, Robert H. Sitkoff

Law and Economics Papers

This paper investigates the effect of changes in state prudent trust investment laws on asset allocation in noncommercial trusts. The old prudent man rule favored “safe” investments

such as government bonds and disfavored “speculation” in stock. The new prudent investor rule, now widely adopted, relies on modern portfolio theory, freeing the trustee to invest based on risk and return objectives reasonably suited to the trust and in light of the composition of the trust portfolio as a whole. Using state- and institution-level panel data from 1986-1997, we find that after a state’s adoption of the new prudent investor rule, trust …

Administrative Law Judge Upholds Ftc Complaint Ordering Evanston Northwesternhealthcare Corporation To Unwind Five-Year-Old Acquisition , James Lowe, Alexander Krulic

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On October 21, 2005, the Federal Trade Commission (FTC) announced that Administrative Law Judge Stephen J. McGuire had ordered Evanston Northwestern Healthcare Corporation (ENH) to divest Highland Park Hospital, located in a Chicago suburb. (The decision can be found at http://www.ftc. gov/os/adjpro/d9315/051021idtextversion. pdf.) ENH had acquired Highland Park five years ago for $200 million. In an administrative complaint issued in February 2004, the FTC alleged that the acquisition had resulted in "substantially lessened competition" and higher prices for insurers and healthcare consumers for general acute care inpatient services sold to managed care organizations. In upholding part of the complaint, Judge …

Reflections On The Law And Economics Of Copyright Scope And Its Implications For Fair Use, Matthew J. Sag

Public Law and Legal Theory Papers

Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. The article explores the relationship between copyright scope and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. This analysis of copyright scope establishes that (1) the efficiency of private ordering is the key determinant of the ideal level of copyright scope; (2) the complexity of the welfare-scope relationship is such that we are unlikely to be able to ascertain a generalizable …

Perpetuities Or Tax: Explaining The Rise Of The Perpetual Trust, Max M. Schanzenbach, Robert H. Sitkoff

Public Law and Legal Theory Papers

By abolishing the Rule Against Perpetuities, 21 states have validated perpetual trusts. The prevailing view among scholars is that the 1986 generation skipping transfer (GST) tax prompted the movement to abolish the Rule by conferring a salient tax advantage on long-term trusts. However, an alternate view holds that demand for perpetual trusts stems from donors’ preference for control independent of tax considerations. Proponents of both views have adduced supporting anecdotal evidence. Using state-level panel data on trust assets prior to the adoption of the GST tax, we examine whether a state’s abolition of the Rule gave the state an advantage …

A Law And Economics Perspective On Terrorism, Nuno M. Garoupa , Jonathan Klick, Francesco Parisi

George Mason University School of Law Working Papers Series

This paper reviews the existing law and economics literature on crime, noting where various models might apply to the terror context. Specifically, it focuses on two strands of the literature, deterrence and incapacitation. Challenging the conventional application of the basic rational agent model of crime in the context of terrorism, it considers anti-terror measures enacted by different countries, highlighting how the details of the laws correspond to the insights from economic models of crime. In conclusion, the paper proposes an efficient sorting mechanism in which individuals will be provided with adequate incentives to reveal their type to law enforcement authorities.

Two Tales Of Bundling, Bruce H. Kobayashi

George Mason University School of Law Working Papers Series

The economic literature on bundling has made many theoretical advances. However, several omissions reveal themselves. The advances have largely been on the theoretical side. These models contain restrictive assumptions regarding the existence of monopoly in some markets, and the nature of rivalry in others. The models generally ignore obvious and ubiquitous reasons firms may use bundled discounts. These models have not been subject to robustness checks, nor have their assumptions been tested empirically. As a result, the literature that shows the possibility of anticompetitive harm does not provide a reliable way to gauge whether the potential for harm would outweigh …

Constitutional Adjudication, Civil Rights, And Social Change, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on “facts” about a social group to justify or reject limitations on group members’ rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact-based approach to decision-making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial power to retain traditional justifications for restricting group members’ rights in some settings but not …

The Economics Of Loyalty Discounts And Antitrust Law In The United States, Bruce H. Kobayashi

George Mason University School of Law Working Papers Series

This paper examines the law and economics of loyalty discounts. While there have been recent advances in the economic analysis of loyalty discounts, this literature is still relatively recent and sparse. Though some of these papers provide tests that would serve to identify either deviations from short run profit maximization or, in the case of bundled discounts, a reduction in consumer welfare or the exclusion of a hypothetically equally efficient competitor, these tests have several shortcomings. As a result, the economic literature currently does not provide a reliable way to gauge whether the potential harm from the use of loyalty …

Legislatively Revising Kelo V. City Of New London: Eminent Domain, Federalism, And Congressional Powers, Bernard W. Bell

Rutgers Law School (Newark) Faculty Papers

This paper explores Congress’ power to limit state and local authorities’ use of eminent domain to further economic revitalization. More particularly, it examines whether Congress can constrain the discretion to invoke eminent domain which state and local officials appear entitled to under the Supreme Court’s recent decision in Kelo v. City of New London, — U.S. —, 125 S.Ct. 2655 (2005). The question involves and exploration and assessment of the Supreme Court’s recent jurisprudence regarding federalism and judicial supremacy.

In providing that private property may not be taken for “public use” without just compensation, the Fifth Amendment implicitly precludes government …

Calling A Truce In The Culture Wars: From Enron To The Cia, Craig S. Lerner

George Mason University School of Law Working Papers Series

This Article compares and evaluates recent Congressional efforts to improve institutional “cultures” in the private and public sectors. The Sarbanes-Oxley Act of 2002 was designed to upgrade corporate culture by patching up the “walls” that separate corporate management from boards of directors, accountants, lawyers, and financial analysts. The Intelligence Reform Act of 2005 took a different tack, hammering away at walls that supposedly segmented the intelligence community. The logic was that the market failed because people did not observe sufficient formalities in their dealings with one another, while the intelligence community failed precisely because people kept their distance from one …

Life V. Death: Or Why The Death Penalty Should Marginally Deter, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

Econometric measures of the effect of capital punishment have increasingly provided evidence that it deters homicides. However, most researchers on both sides of the death penalty debate continue to rely on rather simple assumptions about criminal behavior. I attempt to provide a more nuanced and predictive rational choice model of the incentives and disincentives to kill, with the aim of assessing to what extent the statistical findings of deterrence are in line with theoretical expectations. In particular, I examine whether it is plausible to suppose there is a marginal increase in deterrence created by increasing the penalty from life imprisonment …

Private Property, Development And Freedom, Steven J. Eagle

George Mason University School of Law Working Papers Series

The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.

Reasonable Suspicion And Mere Hunches, Craig S. Lerner

George Mason University School of Law Working Papers Series

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they could articulate the “reasonable inferences” for their suspicion, and not merely allude to a “hunch.” Since Terry, the American legal system has discounted the “mere” hunches of police officers, requiring them to articulate “specific” and “objective” observations of fact to support their decision to conduct a stop and frisk. The officer’s intuitions, gut feelings and sixth sense about a situation are all disallowed.

This dichotomy between facts and intuitions is built on sand. Emotions and intuitions can be reasonable, and reasons are …

Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns

George Mason University School of Law Working Papers Series

In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion …

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Expressive Association After Dale, David E. Bernstein

George Mason University School of Law Working Papers Series

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of …

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

Discretion And Criminal Law: The Good, The Bad, And The Mundane, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” …

Time Travel, Hovercrafts, And The Framers: James Madison Sees The Future And Rewrites The Fourth Amendment, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

The Framers could not have contemplated the interpretational problems that cloud the Fourth Amendment because police, in the modern sense, were unknown to the Framers. Also unknown to the Framers, of course, were wiretaps, drug interdiction searches, thermal imagining, helicopters, and blood tests. We can infer from the history surrounding the Fourth Amendment what the Framers hoped it would accomplish in their time. What if the Framers could have seen the future and known the kind of police techniques that are being used today? What kind of Fourth Amendment would they have written with that knowledge? This article seeks to …

Bolling, Equal Protection, Due Process, And Lochnerphobia, David E. Bernstein

George Mason University School of Law Working Papers Series

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.

The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court …

China's Proposed Anti-Monopoly Law, Pamela Bookman

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Well-designed competition policy can promote consumer welfare and economic growth. Poorly designed policy can retard both. As China’s importance in the world economy grows steadily each year, so does the importance of its competition policy. Because China is a low-cost manufacturing center and home to an enormous market, foreign companies have invested in China extensively, including through joint ventures with Chinese companies that involve sharing the foreign companies’ intellectual property rights with their Chinese partners.

Empagran S.A. V. F. Hoffman-Laroche, Ltd.: Dc Circuit Restricts Reach Of Us Antitrust Laws Over Injuries Sustained In Foreign Commerce, Leon Greenfield, David Olsky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On June 28, 2005, the US Court of Appeals for the District of Columbia issued an important opinion on the extraterritorial reach of the US antitrust laws in Empagran S.A. v. F. Hoffman-Laroche, Ltd. The court held, on remand from the Supreme Court, that plaintiffs injured outside US commerce cannot bring antitrust suits in US courts unless the US effects of the anticompetitive conduct at issue are the proximate cause of their injuries. The decision construes narrowly the circumstances under which plaintiffs may be able to sue in US courts for injuries suffered in foreign commerce.

Us Merger Review: A ‘Goldilocksian’ Perspective, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

US merger control rests on four strong cornerstones. The first is section 7 of the Clayton Act, as amended by the Celler-Kefauver Act in 1950, which created the substantial lessening of competition standard as the test for the legality of mergers and acquisitions. The second is the Supreme Court’s 1962 decision in Philadelphia National Bank, which relied on the structure-conduct-performance paradigm from industrial organisation economics to fashion a presumption that mergers that significantly increase concentration in already concentrated industries will lessen competition, imposing on the parties the burden of rebutting the government’s structural case. The third is the Hart-Scott-Rodino Antitrust …

Single-Firm Conduct: The Search For The Holy Grail Of Administrable Procompetetive Standards, William Kolaskly

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

During my tenure as Deputy Assistant Attorney General for International Enforcement in the Antitrust Division of the United States Department of Justice, in a speech I delivered in London, in May 2002, I identified the regulation of single-firm conduct as the area of greatest divergence between U.S. and European competition policy. In the United States, led by the insights of the so-called Chicago School of economics, the courts have moved progressively toward an approach to single-firm conduct that has substantially narrowed the range of potential antitrust intervention. In Europe, by contrast, the courts appear to continue to take a more …

On Hastening Death Without Violating Legal Or Moral Prohibitions, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind.

A dying patient’s interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity …

Sector Inquiries On The Italian Electricity And Natural Gas Markets Expose Failures In Both Liberalisation Processes., Antonio Capobianco

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 9 February 2005, the Autorità Garante della Concorrenza e del Mercato (AGCM) and the Autorità per l’Energia Elettrica e il Gas (AEEG) concluded a joint sector inquiry on the progress of liberalisation in the Italian electricity market (Electricity Sector inquiry). The Electricity Sector inquiry follows another joint inquiry by the two authorities a few months earlier on the progress of liberalisation of the natural gas market in Italy (Natural Gas Sector inquiry). The Natural Gas Sector inquiry was published on 19 June 2004. This article summarises the findings and the conclusions of both sector inquiries and describes the methodology …