Law Commons^™

Market Power And Antitrust Enforcement, John B. Kirkwood

Faculty Articles

Antitrust is back on the national agenda. The Democratic Party, leading Senators, progressive organizations, and many scholars are calling for stronger antitrust enforcement. One important step, overlooked in the discussion to date, is to reform how market power — an essential element in most antitrust violations — is determined. At present the very definition of market power is unsettled. While there is widespread agreement that market power is the ability to raise price profitably above the competitive level, there is no consensus on how to determine the competitive level. Moreover, courts virtually never measure market power (or its larger variant, …

Environmental Governance And The Global South, Jeffrey Minneti

Faculty Articles

Over the last several decades, efforts to regulate the environment through traditional public law at national and international levels have stalled. In contrast, private environmental governance has flourished as nongovernmental entities have engaged in standard setting and assessment practices traditionally left to public government. Such entities include the Forest Stewardship Council (FSC) and Rainforest Alliance, both of which are nongovernmental entities that prescribe environmental standards for producers, provide labels and logos for producers that choose to comply with the standards, and maintain compliance through independent audits. The schemes incentivize environmentally responsible products and production processes by linking producers who conform …

Labor Organizing In The Age Of Surveillance, Charlotte Garden

Faculty Articles

No abstract provided.

Milking The Estate, David R. Hague

Faculty Articles

Recent Chapter 7 bankruptcy cases are exposing a widespread problem. Chapter 7 trustees are retaining their own law firms to represent them and then in clear breach of their fiduciary duties to creditors-requesting illegitimate legal fees to be paid by the estate. This practice is immoral and particularly harmful to creditors. Indeed, every dollar paid to the trustee and his firm is a dollar that will not be distributed to creditors. The Bankruptcy Code, remarkably, allows a trustee to retain his own law firm to represent him in his capacity as a trustee. But this inherently conflicted arrangement is not …

After Years Of Working With ‘Ritmo’ Detainees, I Know The Inhumane Facility Doesn’T Deserve A Second Chance, Erica B. Schommer

Faculty Articles

No abstract provided.

A Legal Fempire?: Women In Complex Civil Litigation, Brooke D. Coleman

Faculty Articles

Justice Ruth Bader Ginsburg made headlines when she said that she would be satisfied with the number of women on the Supreme Court “when there are nine.” But why should that answer have been so remarkable? After all, there were nine men on the Court for nearly all of its history. Yet, Justice Ginsburg’s statement was met with amusement or from some quarters — disdain. What answer would have been considered more appropriate coming from a groundbreaking feminist litigator? Would four have been an acceptable answer? Would five have been presumptuous? This episode reflects our cramped view of how much …

Social Justice And Islamic Jurisprudence, Russell Powell

Faculty Articles

No abstract provided.

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …

#Metoo Justice (Review Of "#Metoo, Time’S Up, And Theories Of Justice" By Lesley Wexler, Jennifer Robbennolt & Colleen Murphy), Brooke D. Coleman

Faculty Articles

No abstract provided.

What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis (Afterword), Steven Bender, Tayyab Mahmud, Francisco Valdes, Shelley Cavalieri, Jasmine Gonzalez Rose, Saru Matambanadzo, Roberto Corrada, Jorge Roig, Zsea Bowmani, Anthony E. Varona

Faculty Articles

No abstract provided.

What's Next: Counter-Stories And Theorizing Resistance (Foreword), Tayyab Mahmud

Faculty Articles

No abstract provided.

The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth

Faculty Articles

Consider two cases. In the first case, you represent the children of a woman who was intentionally and wrongfully killed by her husband. After having pled guilty to negligent homicide, the husband probates his wife's will in which he is the sole beneficiary. In the second case, your client attempts an online transfer of her savings to another of her accounts but enters the account number erroneously and sends her life's savings to a stranger's account. The recipient of this windfall has withdrawn the money in cashier's checks and refuses to return them to her.

Your clients want a court …

Socialized Liability In Chinese Tort Law, Chenglin Liu

Faculty Articles

This article explores two unique aspects of the Chinese Tort Liability Law (TLL): (1) Article 24 holds that a party not at fault shall share the loss with the victim in non-strict liability cases under undefined circumstances, and (2) the government often shields a party at fault from liability in mass tort cases by disregarding the TLL entirely. These two aspects may seem contradictory; however, they are both based on the same principle of socialized liability, which is first articulated in this article.

Scholars often claim that Article 24 embodies the principle of equitable liability. This article challenges such claims …

The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein

Faculty Articles

In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.

This Article examines …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd

Faculty Articles

Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.

In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. Part I presents doctrinal background. It discusses the laws governing tip-pooling, with an emphasis on relevant federal and state laws. Part II analyzes, from a law-and-economics perspective, how tip-pooling arrangements—both voluntary and mandatory—might arise, and what form they might take. Part III shows how governing law limits the ability of restaurateurs to put tip-pooling arrangements in place, and shapes the incentives of employees. It also analyzes the response of restaurants like the Union Square Hospitality Group that have barred all tipping. Part IV suggests revisions to existing law that would free up management’s freedom to …

The Morality Of Compulsory Licensing As An Access To Medicines Tool, Margo A. Bagley

Faculty Articles

This Article contemplates the validity of theft rhetoric in relation to the right of countries to grant compulsory licenses from an unconventional perspective; that of biblical teachings on what it means to steal.

Part I describes the use of theft rhetoric in relation to IP infringement broadly and drug-patent compulsory licenses in particular.

Part II challenges the contention, suggested by theft rhetoric, that compulsory licenses are morally wrong as a form of stealing, by considering the meaning of theft in the context of its Judeo-Christian origins.

Part III considers the cogency of the accusation that the issuance of compulsory licenses …

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Faculty Articles

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

This Article makes two core arguments. First, it maintains that the common law of nuisance remains an essential backstop when existing regulatory authorities fail to address significant environmental problems. Second, reconnecting nuisance law to its historical roots, the Article maintains that common law litigation has served as an effective prod to help spur the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than serving as a vehicle for the judiciary to impose its own solutions for environmental problems.

This Article proceeds in four parts. Part I reviews the history of …

Unbundling Freedom In The Sharing Economy, Deepa Das Acevedo

Faculty Articles

Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.

This …

Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell

Faculty Articles

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet …

Consolidation And Innovation In The Pharmaceutical Industry: The Role Of Mergers And Acquisitions In The Current Innovation Ecosystem, Joanna Shepherd

Faculty Articles

Recent changes in the pharmaceutical industry have spurred an unprecedented wave of mergers and acquisitions. Some researchers and agencies have questioned whether pharmaceutical consolidation could impede drug innovation. However, as I explain in this Article, these concerns are largely based on an outdated understanding of the drug innovation ecosystem. Whereas a few decades ago almost all drug discovery took place inside traditional pharmaceutical companies, today most drug innovation is externally-sourced from biotech companies and smaller firms. Internal R&D is no longer the primary source, or even an important source, of drug innovation. As a result, analyses that focus on the …

Diversity, Tenure, And Dissent, Joanna Shepherd

Faculty Articles

Although academics have long recognized that institutions such as opinion-assignment procedures and voting order might influence the propensity to dissent, empirical studies have failed to consider the impact of collegiality and personal relationships on dissent rates. Thus, in this short Essay, I empirically test whether some of the judges’ assertions are consistent with the data. I test whether various measures of diversity are associated with dissent rates in state supreme courts. I find that diversity in many areas—gender, race, age, religion, home state, and political affiliation—is associated with higher levels of dissent. In contrast, diversity in the jobs that judges …

Starting From Scratch: Early Steps For The Journal, J. Christopher Rideout

Faculty Articles

No abstract provided.

The 'Blurred Lines' Of Marvin Gaye's 'Here, My Dear': Music As A Tortious Act, Divorce Narrative And First Amendment Totem, Bryan Adamson

Faculty Articles

"In 1977, singer Marvin Gaye did an audacious thing: Anna Gordy-Gaye was divorcing him, and asking for $1 million dollars. Despite having a wildly successful career up to that point, Marvin was near financial ruin. His attorney, Curtis Shaw, hit upon an idea: Motown, Marvin’s record label, had given him $305,000 as an advance for his upcoming-but-undeveloped album. Marvin would give Anna the $305,000, and pledge the first $295,000 of the royalties yielded from that recording. Instead of $1 million, Anna agreed to the $600,000, as did Motown’s CEO Berry Gordy, Anna’s brother. The judge wrote up an Order to …

#Sowhitemale - Federal Civil Rulemaking, Brooke D. Coleman

Faculty Articles

116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are …

The Bearish Bankruptcy, Diane Lourdes Dick

Faculty Articles

No abstract provided.

Making And Breaking Connections: Valuable Perspectives On Persuasion, Review Of Legal Persuasion: A Rhetorical Approach To The Science Linda L. Berger & Kathryn M. Stanchi, Mary Nicol Bowman

Faculty Articles

No abstract provided.

Market Power And American Express, John B. Kirkwood

Faculty Articles

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express clearly exercised …