Law Commons^™

Paul Baran, Network Theory, And The Past, Present, And Future Of Internet, Christopher S. Yoo

All Faculty Scholarship

Paul Baran’s seminal 1964 article “On Distributed Communications Networks” that first proposed packet switching also advanced an underappreciated vision of network architecture: a lattice-like, distributed network, in which each node of the Internet would be homogeneous and equal in status to all other nodes. Scholars who have subsequently embraced the concept of a lattice-like network approach have largely overlooked the extent to which it is both inconsistent with network theory (associated with the work of Duncan Watts and Albert-László Barabási), which emphasizes the importance of short cuts and hubs in enabling networks to scale, and the actual way, the Internet …

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

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

All 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 …

Comment On 'Error And Regulatory Risk In Financial Institution Regulation', Keith N. Hylton

Faculty Scholarship

I agree with just about everything Jonathan Macey (2017) says in his symposium contribution. His claim that bureaucratic tendencies toward regularity—specifically, treating like cases alike—generate errors in categorization seems appropriate to me. His explanations of the pathologies in financial regulation should fall in the category of essential or required reading for anyone who chooses to write on the topic. Where I differ from Macey is in the choice of framework, or perspective from which to view the pathologies. Whereas Macey adopts an “error cost” framework, which is clearly appropriate for this symposium, I would build explicitly on a “public choice” …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Faculty Scholarship

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching agreements in the …

Public Or Private Venture Capital?, Darian M. Ibrahim

Popular Media

No abstract provided.

Life Cycle Costing And Food Systems: Concepts, Trends, And Challenges Of Impact Valuation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Our global food systems create pervasive environmental, social, and health impacts. Impact valuation is an emerging concept that aims to quantify all environmental, social, and health costs of food systems in an attempt to make the true cost of food more transparent. It also is designed to facilitate the transformation of global food systems. The concept of impact valuation is emerging at the same time as, and partly as a response to, calls for the development of legal mechanisms to address environmental, social, and health concerns. Information has long been understood both as a necessary precursor for regulation and as …

The Law Officer (Lo) And Compliance Officer (Co): Status, Function, Liabilities, And Relationship, Tamar Frankel

Faculty Scholarship

The rise of Compliance officers (COs) has raised questions about their status in institutions and comparisons to the Legal Officers (CLOs). While both officers deal with law and its enforcement, their functions and positions differ in fundamental ways. And while LOs position is recognized, the status of COs is evolving. However, these differences are slowly becoming clearer.

1. While the LO’s function is to provide legal advice to the institutional client, the CO’s function is to (i) evaluate the institution’s activities before violations take place and (ii) help prevent violations of the law by the institution. The CO should detect …

The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV industry, which this …

Oligopoly Pricing And Richard Posner, Keith N. Hylton

Faculty Scholarship

Over a span of nearly 50 years Richard Posner’s voice has loomed large over the subject of oligopoly pricingand antitrust. The span begins in 1969 with Posner’s publication of “Oligopoly and the Antitrust Laws: A Suggested Approach,” which argues for more aggressive enforcement of Section 1 in cases involving circumstantial evidence of conspiracy. The span ends with Posner’s opinion in In re Text Messaging Antitrust Litigation, in 2015. The two writings, the first an academic article published early in Posner’s career and the second a judicial opinion published near the end of his time on the bench, suggest very different …

Finishing The Job Best Practices For A Diverse Workforce In The Construction Industry V.8 Sept 2018, Susan Moir Scd

Labor Studies Faculty Publication Series

This manual is a work in progress. It is produced by the Policy Group on Tradeswomen’s Issues (PGTI), a regional collaboration of researchers, government agencies, unions, community-based organizations, developers and contractors committed to increasing access for women and people of color to good paying careers in the construction trades. Our goal is to make our shared efforts and experiences helpful to industry leaders who share our commitment. It is based on best practices developed on major projects that came close, met, or exceeded workforce hiring goals. This manual and additional resources are available online at on the PGTI website at …

The Diminishing Duty Of Loyalty, Julian Velasco

Journal Articles

Fiduciary duties comprise an integral part of corporate law. It is generally understood that directors owe the corporation and its shareholders two fiduciary duties: the duty of care and the duty of loyalty. Although both duties are firmly established in corporate law, they are not treated equally. It is generally understood that the duty of loyalty is enforced far more rigorously than the duty of care. The justification for this dichotomy is twofold. First, differential treatment is appropriate because of the relative urgencies of the underlying subject matter: loyalty issues pose greater risks than do care issues. Second, the deference …

The International Provisions Of The Tcja: Six Results After Six Months, Reuven S. Avi-Yonah

Law & Economics Working Papers

Over six months have passed since the enactment of the TCJA, so it is now possible to reach some preliminary conclusions on its impact. The main ones are:

1. The transition tax plus anticipated GILTI tax minus territoriality have resulted in higher GAAP effective tax rates for 2017. In some cases they approach 35% for large multinationals with a lot of offshore income. For the first six months of 2018, however, overall corporate tax revenues are sharply down because of the 21% rate plus expensing. This is the exact reverse of the situation before TCJA in which MNEs showed very …

Serial Collusion By Multi-Product Firms, Michael J. Meurer, William Kovacic, Robert Marshall

Faculty Scholarship

We provide empirical evidence that many multi-product firms have each participated in several cartels over the past 50 years. Standard analysis of cartel conduct, as well as enforcement policy, is rooted in the presumption that each cartel in which a given firm participates is a singular activity, independent of other cartel conduct by the firm. We argue that this analysis is deficient in many respects in the face of serial collusion by multi-product firms. We offer policy recommendations to reign in serial collusion, including a mandatory coordinated effects review for any merger involving a serial colluder, regardless of the apparent …

The Salience Theory Of Consumer Financial Regulation, Natasha Sarin

All Faculty Scholarship

Prior to the financial crisis, banks’ fee income was their fastest-growing source of revenue. This revenue was often generated through nefarious bank practices (e.g., ordering overdraft transactions for maximal fees). The crisis focused popular attention on the extent to which current regulatory tools failed consumers in these markets, and policymakers responded: A new Consumer Financial Protection Bureau was tasked with monitoring consumer finance products, and some of the earliest post-crisis financial reforms sought to lower consumer costs. This Article is the first to empirically evaluate the success of the consumer finance reform agenda by considering three recent price regulations: a …

Teaching The Lochner Era, Barry Cushman

Journal Articles

This article, prepared for the St. Louis University Law Journal's issue on “Teaching the Fourteenth Amendment,” develops a taxonomy of the Supreme Court's economic substantive due process jurisprudence during the so-called “Lochner Era” of the late-19th and early-20th centuries, and offers an assessment of the trajectory and mechanisms of the decline of that body of doctrine.

The Policy Challenge Of Artificial Intelligence, James Bessen

Faculty Scholarship

New "artificial intelligence" (AI) technology promises to bring dramatic social and economic changes, demanding major policy changes. In intellectual property and antitrust law, AI will exacerbate a damaging trend: across all major sectors of the economy, proprietary information technology is increasing the market dominance of large firms. This trend might not seem like bad news, but it is evidence of a slowdown in the spread of technical knowledge throughout the economy. The result is rising industry concentration, slower productivity growth and growing wage inequality. The key challenge to IP and antitrust policy will be counter this trend yet maintain innovation …

The Persistent Labor Market Effects Of A Criminal Conviction And “Ban The Box” Reforms, Joshua M. Congdon-Hohman

Economics Department Working Papers

Past literature has established that individuals who have been incarcerated face difficulties reentering the work force following their release, while finding and keeping a job can significantly reduce recidivism amongst individuals with prior criminal convictions. In attempt to improve employment outcomes, many local and state governments in the United States have initiated "Ban the Box" regulations. These initiatives delay inquiries regarding criminal history on job applications. Versions of ban the box regulations covering public sector employment have been enacted in 31 states and more than 150 local governments. Ban the box laws have included private employers in eleven states and …

Regulatory Reform In China And The Eu: A Law And Economics Perspective, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Edited by Stefan E. Weishaar, Niels Philipsen and Wenming Xu, this volume is an output of collaborative efforts that bring together a group of both established and emerging law and economics scholars from China and the European Union (EU). The volume makes a timely contribution to existing scholarship in several crucial ways. First, although this collection originated from a series of conferences held between 2012 and 2015, many of the debates engaged in by contributors, and in particular the overarching theme of this book, turn on the role of the Chinese government in directing the behaviour of market participants at …

Marginal Rates Under The Tcja, Reed Shuldiner

All Faculty Scholarship

In this report, Shuldiner argues that although the Tax Cuts and Jobs Act appears to offer an across-the board reduction in individual marginal tax rates augmented by an additional 20 percent reduction in rates on unincorporated business income, the situation is significantly more complex.

Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr.

All Faculty Scholarship

This Essay draws both on my scholarly and on my personal experience as a member of Puerto Rico’s oversight board to assess the first two years of the Board’s existence. I begin in a scholarly mode, by exploring the question of where P.R.O.M.E.S.A., the legislation that created the Board, came from. P.R.O.M.E.S.A.’s core provisions are, I will argue, the product of two historical patterns that have emerged in responses to the financial distress of public entities in the United States. The first dates back to the 1970s crisis in New York City, while the second is much more recent. If …

Different Contexts, Different Risk Preferences?, Levon Barseghyan, Joshua C. Teitelbaum, Lin Xu

Georgetown Law Faculty Publications and Other Works

We examine the stability of risk preferences across contexts involving different stakes. Using data on households' deductible choices in three property insurance coverages and their limit choices in two liability insurance coverages, we assess the stability across the five contexts in the ordinal ranking of the households' willingness to bear risk. We find evidence of stability across contexts involving stakes of the same magnitude, but not across contexts involving stakes of very different magnitudes. Our results appear to be robust to heterogeneity in wealth and access to credit, complicating seemingly ready explanations.

Regulation And The Marginalist Revolution, Herbert J. Hovenkamp

All Faculty Scholarship

The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. Marginalism, whose development defines the boundary between classical political economy and neoclassical economics, completely overturned economists’ theory of value. It developed in the late nineteenth century in England, the Continent and the United States. For the classical political economists, value was a function of past averages. One good example is the wage-fund theory, which saw the optimal rate of wages as a function of the firm’s ability to save from previous profits. Another is the theory of corporate finance, which assessed a corporation’s …

Perpetual Motion Machines: Esops Don’T Pay For Themselves, Andrew Stumpff Morrison

Law & Economics Working Papers

In this article, Stumpff addresses policy issues regarding employee stock ownership plans and demonstrates how some claims in support of ESOPS aren’t supported by the math.

Models Of Other-Regarding Preferences And Redistribution, Matthew Dimick, David Rueda, Daniel Stegmueller

Journal Articles

Despite the increasing popularity of comparative work on other-regarding preferences, the implications of different models of altruism are not always fully understood. This article analyzes different theoretical approaches to altruism and explores what empirical conclusions we should draw from them, paying particular attention to models of redistribution preferences where inequality explicitly triggers other-regarding motives for redistribution. While the main contribution of this article is to clarify the conclusions of these models, we also illustrate the importance of their distinct implications by analyzing Western European data to compare among them. We draw on individual-level data from the European Social Survey fielded …

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

Faculty Scholarship

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The …

Trends In Private Patent Costs And Rents For Publicly-Traded United States Firms, James Bessen, Peter Neuhausler, John L. Turner, Jonathan Williams

Faculty Scholarship

We use detailed data to estimate the private costs and private rents of United States patents for publicly-traded firms. In analyzing costs, we first introduce a novel theoretical model to interpret our estimates. We then combine lawsuit data from Derwent Litalert with non-practicing entity (NPE) lawsuits collected by Patent Freedom, and use an event-study approach to estimate losses suffered by alleged infringers during 1984-2009. To estimate rents, we combine patent data from the USPTO and EPO with financial data from COMPUSTAT, and use market-value regressions to estimate the value of patent rents for publicly-traded US firms during 1979-2002. We find …

Was The Amt Effectively Repealed?, Reed Shuldiner

All Faculty Scholarship

The individual alternative minimum tax (AMT) was a much disliked feature of the tax law prior to the Tax Cuts and Jobs Act (TCJA). Yet, despite repeated promises to repeal the AMT as part of tax reform, the TCJA dropped AMT repeal in favor of increasing the AMT exemption and its phaseout threshold. The question raised by this development is whether the AMT changes should be viewed as yet another stop-gap tweak of the AMT or whether the changes should be viewed as returning the AMT to its roots as a tax on high-income taxpayers using excessive loopholes. In this …