Law and Economics Commons^™

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

Brief Of Amici Curieae 56 Professors Of Law And Economics In Support Of Petition Of Writ Of Certiorari, John R. Allison, Margo Bagley, James Bessen, Jeremy Bock, Daniel H. Brean, Michael A. Carrier, Michael W. Carroll, Bernard Chao, Tun-Jen Chiang, Colleen V. Chien, Andrew Chin, Robert Cook-Deegan, Md, Rochelle Dreyfuss, Dr. Dieter Ernst, Samuel F. Ernst, Robin C. Feldman, Lee Fleming, Brian Frye, William Gallagher, Shubha Ghosh, Eric Goldman, Bronwyn H. Hall, Yaniv Heled, Christian Helmers, Joachim Henkel, Susan Helper, Tim Holbrook, Herbert Hovenkamp, William Hubbard, Dr. Xavier Jaravel, Dennis S. Karjala, Peter Lee, Mark A. Lemley, David K. Levine, David S. Levine, Doug Lichtman, Yvette Joy Liebesman, Orly Lobel, Brian Love, Phil Malone, Michael J. Meurer, Dr. Shawn Miller, Matthew Mitchell, Susan Barbieri Montgomery, Sean Pager, Arti K. Rai, Jacob H. Rooksby, Jorge R. Roig, Matthew Sag, Pamela Samuelson, Ana Santos Rutschman, Lea Bishop Shaver, Toshiko Takenaka, John L. Turner, Jennifer Urban, Eric Von Hippel

Andrew Chin

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant …

Brief Of Amici Curiae 56 Professors Of Law And Economics In Support Of Petition Of Writ Of Certiorari, John R. Allison, Margo Bagley, James Bessen, Jeremy Bock, Daniel H. Brean, Michael A. Carrier, Michael W. Carroll, Bernard Chao, Tun-Jen Chiang, Colleen V. Chien, Andrew Chin, Robert Cook-Deegan, Md, Rochelle Dreyfuss, Dr. Dieter Ernst, Samuel F. Ernst, Robin C. Feldman, Lee Fleming, Brian Frye, William Gallagher, Shubha Ghosh, Eric Goldman, Bronwyn H. Hall, Yaniv Heled, Christian Helmers, Joachim Henkel, Susan Helper, Tim Holbrook, Herbert Hovenkamp, William Hubbard, Dr. Xavier Jaravel, Dennis S. Karjala, Peter Lee, Mark A. Lemley, David K. Levine, David S. Levine, Doug Lichtman, Yvette Joy Liebesman, Orly Lobel, Brian Love, Phil Malone, Michael J. Meurer, Dr. Shawn Miller, Matthew Mitchell, Susan Barbieri Montgomery, Sean Pager, Arti K. Rai, Jacob H. Rooksby, Jorge R. Roig, Matthew Sag, Pamela Samuelson, Ana Santos Rutschman, Lea Bishop Shaver, Toshiko Takenaka, John L. Turner, Jennifer Urban, Eric Von Hippel

Michael W. Carroll

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant …

Beyond The Money: Expected (And Unexpected) Consequences Of America's War On Drugs, Cynthia Brown

Lincoln Memorial University Law Review Archive

The purpose of this paper is to provide a high-level survey of our nation’s prohibition policies within the context of the costs of the law enforcement efforts upholding those policies. The discussion will offer a cursory review of the economic expense of the war on drugs with tangential coverage of the constitutional, institutional and intangible expenses that are inseparable from an assessment of the costs of America’s drug control efforts. Part I provides a historical review of illicit drug use in the United States, while Part II supplies the evolution of the country’s efforts to codify its drug control policies. …

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

All Faculty Scholarship

Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others …

Workin’ 9:00–5:00 For Nine Months: Assessing Pregnancy Discrimination Laws In Georgia, Kaitlyn Pettet

Georgia State University Law Review

As demonstrated in this Note, there is still a considerable way to go before women are no longer forced to choose between pregnancy and keeping their career. Allegations of pregnancy discrimination in the workplace are also on the rise.

In 1997, 4,000 plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC). By 2011, that number rose to 5,800. The EEOC won significant damages in pregnancy discrimination cases, demonstrating a greater tendency towards discrimination in the workplace. Additionally, this rise in claims and awards caught the attention of the nation’s media, placing new emphasis on the treatment of pregnant women …

Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster

Georgia State University Law Review

Money matters in the justice system. If you can afford to purchase your freedom pretrial, if you can afford to immediately pay fines and fees for minor traffic offenses and municipal code violations, if you can afford to hire an attorney, your experience of the justice system both procedurally and substantively will be qualitatively different than the experience of someone who is poor. More disturbingly, through a variety of policies and practices—some of them blatantly unconstitutional—our courts are perpetuating and criminalizing poverty. And when we talk about poverty in the United States, we are still talking about race, ethnicity, and …

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey

Journal Articles

Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle …

Appraising The Progressive State, Herbert J. Hovenkamp

All Faculty Scholarship

Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest vulnerabilities …

The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

Last Term, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court’s first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided. This Essay explains that analysis, why the majority accepted it, why the dissenters’ objections to the majority’s reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court’s decision in Wynne …

Partial Takings, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them. …

The Legal Climate On Climate Change: The Fate Of The Epa's Clean Power Plan After Michigan And Uarg, Israel Katz

Brooklyn Journal of Corporate, Financial & Commercial Law

One of the centerpieces of the United States’ effort to combat climate change is the Environmental Protection Agency’s (EPA) controversial Clean Power Plan, which consists of the first-ever federal regulations requiring states to achieve massive carbon dioxide emissions reductions from existing fossil fuel-fired power plants. The regulations operate by setting interim and final emissions target dates for states to ultimately reach an aggregate 32% reduction in carbon emissions by the year 2030. This Note argues that the current regulations will not survive judicial scrutiny, because the U.S. Supreme Court has moved away from traditional administrative deference in instances where an …

The Corporation In The Marketplace Of Ideas, 51 J. Marshall L. Rev. 19 (2017), Matthew Telleen

UIC Law Review

No abstract provided.

Imagining Equity And Inclusion: South Africa's International Economic Politics And Reflections On The Writings Of Justice Dikgang Moseneke, Erika George

Faculty Scholarship

In honour of Justice Dikgang Moseneke, this essay takes up his invitation to imagine an ethos consistent with South African Constitutionalism, one which could promote economic justice. This essay explores how the tools of international economic law as utilised by South Africa could serve as a means of transformation to advance the end of a more inclusive economic globalisation. South Africa's trade policies and participation in international business and human rights policy initiatives are offered as illustrations of a shift towards asserting interests aligned with the country's constitutional economic justice commitments. First, emphasising Justice Moseneke's writings outside of his rulings …