Law and Economics Commons^™

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Carey 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 …

The Sharing Economy As An Equalizing Economy, John O. Mcginnis

Notre Dame Law Review

Economic equality is often said to be the key problem of our time. But information technology dematerializes the world in ways that are helpful to the ninety-nine percent, because information can be shared. This Article looks at how one fruit of the information revolution—the sharing economy—has important equalizing features on both its supply and demand sides. First, on the supply side, the intermediaries in the sharing economy, like Airbnb and Uber, allow owners of housing and cars to monetize their most important capital assets. The gig aspect of this economy creates spot markets in jobs that have flexible hours and …

The Trouble With Corporate Conscience, James D. Nelson

Vanderbilt Law Review

Accomplished corporate law scholars claim that modern businesses need an infusion of morality. Disappointed by conventional regulatory responses to recurring corporate scandal, these scholars argue that corporate conscience provides a more fruitful path to systemic economic reform. In Burwell v. Hobby Lobby, which held that for-profit businesses can claim religious exemptions from general laws, the Supreme Court gave this notion of corporate conscience added momentum. Emboldened by the Court's embrace of business goals extending beyond shareholder profit, proponents of a moralized marketplace now celebrate corporate conscience as an idea whose time has come. This Essay criticizes the leading arguments for …

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 …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh

Robert B. Ahdieh

Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to …

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Robert B. Ahdieh

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

The Role Of Groups In Norm Transformation: A Dramatic Sketch, In Three Parts, Robert B. Ahdieh

Robert B. Ahdieh

Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story.

Using the latter by way …

The (Misunderstood) Genius Of American Corporate Law, Robert B. Ahdieh

Robert B. Ahdieh

In this Reply, I respond to comments by Bill Bratton, Larry Cunningham, and Todd Henderson on my recent paper - Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance. I begin by reiterating my basic thesis - that state competition should be understood to have little consequence for corporate governance, if (as charter competition's advocates assume) capital-market-driven managerial competition is also at work. I then consider some of the thoughtful critiques of this claim, before suggesting ways in which the comments highlight just the kind of comparative institutional analysis my paper counsels. Rather than a stark choice …

From Federal Rules To Intersystemic Governance In Securities Regulation, Robert B. Ahdieh

Robert B. Ahdieh

In this brief essay, prepared as part of a symposium on The New Federalism: Plural Governance in a Decentered World, I explore the regulatory dynamics at work: (1) in the operation of Securities Exchange Act Rule 14a-8, (2) in the interventions of then-Attorney General Eliot Spitzer in the national securities markets, and (3) in recent steps by the Securities and Exchange Commission to reconcile U.S. and international accounting standards. In each case, a distinct dynamic of regulatory interaction - what I term intersystemic governance - can be observed. In such cases, overlapping jurisdiction combines with various sources of interdependence to …

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 …

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social …

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of …

Tiny Homes For The Homeless: A Return To Politically Engaged Community Economic Development Law?, Lisa T. Alexander

Lisa T. Alexander

The evolution of community economic development (CED) over the past several decades has witnessed dramatic growth in scale and complexity. New approaches to development and related lawyering, and to philosophies underlying these approaches, challenge us to reimagine the framework of CED. From the early days of community development corporations to today’s sophisticated tools of finance and organization, this evolution reflects “why law matters” in pursuit of economic justice and opportunity. Change is visible in new approaches to enterprise development and novel grassroots initiatives that comprise a virtual “sharing economy,” as well as intensified advocacy around low-wage work and efforts to …

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests …

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …

Navigating The New York Courts With The Assistance Of A Non-Lawyer, Fern Fisher

Dickinson Law Review (2017-Present)

This Article discusses a program implemented by the New York State Unified Court System in order to address the justice gap for unrepresented litigants. Part I of this Article discusses the process behind creating the New York Navigator’s Program (discussed in more detail Part II), a program designed to help non-lawyer “Navigators” to assist unrepresented litigants in a limited capacity when the litigants appear before different types of state courts. The Navigators must complete training before they are able to assist the litigants. This program has been well received, as Part IV discusses, and has helped more and more unrepresented …

Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo

All Faculty Scholarship

Although the debate over hipster antitrust is often portrayed as something new, experienced observers recognize it as a replay of an old argument that was resolved by the global consensus that antitrust should focus on consumer welfare rather than on the size of firms, the levels of industry concentration, and other considerations. Moreover, the history of the Federal Trade Commission’s Section 5 authority to prevent unfair methods of competition stands as a reminder of the dangers of allowing enforcement policy to be guided by vague and uncertain standards.

Florida Water Management Districts And The Florida Water Resources Act: The Challenges Of Basin-Level Management, Ryan Stoa

Ryan B. Stoa

Florida’s plentiful freshwater resources are indispensable to the state’s municipal, agricultural, and environmental interests. As such, decision makers presiding over complex water management decisions wield extraordinary powers. The Water Resources Act of Florida vests these powers in five water management districts drawn according to hydrological, not political, boundaries. The water management districts have robust technical, financial, and regulatory powers, and hold the key to Florida’s sustainable development. With the stakes so high, Florida’s water management districts are at the center of a broad fight for control of water resources. In particular, transboundary water conflicts, political pressure, and ecological needs show …

The "Common Word," Development, And Human Rights: African And Catholic Perspectives, Joseph M. Isanga

Joseph Isanga

Africa is the most conflict-ridden region of the world and has been since the end of the Cold War. The Continent's performance in both development and human rights continues to lag behind other regions in the world. Such condi­tions can cause religious differences to escalate into conflict, particularly where religious polarity is susceptible to being exploited. The sheer scale of such con­flicts underscores the urgency and significance of interreligious engagement and dialogue: 'Quantitative and qualitative analysis based on a ... database including 28 violent conflicts show that religion plays a role more frequently than is usually assumed.' This ambivalent character …

Individual Accountability For Corporate Crime, Gregory Gilchrist

Georgia State University Law Review

Corporate crime is too often addressed by fining the corporation, leaving the real people who committed the crime facing no consequence at all. This failure to hold individuals accountable in cases of corporate malfeasance generates an accountability gap that undermines deterrence and introduces expressive costs. Facing heightened criticism of this trend, then-Deputy Attorney General Sally Yates issued a policy designed to generate prosecutions of real people in cases of corporate wrongdoing. The policy reflects a strong and continuing demand for more prosecutions of individuals in the corporate context.

This Article contends that the effort to introduce accountability by increasing prosecutions …

Tax Compliance In A Decentralizing Economy, Manoj Viswanathan

Georgia State University Law Review

Tax compliance in the United States has long relied on information from centralized intermediaries—the financial institutions,employers, and brokers that help ensure income is reported and taxes are paid. Yet while the IRS remains tied to these centralized entities,consumers and businesses are not. New technologies, such as sharing economy platforms (companies such as Airbnb, Uber, and Instacart)and the blockchain (the platform on which various cryptocurrencies are based) are providing new, decentralized options for exchanging goods and services.

Without legislative and agency intervention, these technologies pose a critical threat to the reporting system underlying domestic and international tax compliance. Until now, legal …

Marriage, Millennials, And Massive Student Loan Debt, Victoria J. Haneman

Victoria J. Haneman

The purpose of this Essay is to explore the idea that the student loan indebtedness bearing down upon the majority of today’s college graduates creates economic insecurity that forces borrowers to reject or significantly delay marriage, and that burden, taken together with an already lukewarm Millennial attitude, may not bode well for the future of the institution. Record numbers of Millennials have rejected the traditional path of marriage-homeownership-children, and the percentage of Millennials who will marry by age 40 is projected to fall lower than the figure for any previous generation of Americans. To the extent that marriage is an …

Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Sb 219 - Autonomous Vehicles, W. Perry Hicks, Alan J. Ponce

Georgia State University Law Review

The Act amends Georgia’s Motor Vehicles and Traffic Code to create a legal framework for autonomous vehicles to operate in Georgia. Persons responsible for operating fully autonomous vehicles are exempted from holding a driver’s license. In the event of an accident involving an autonomous vehicle, the vehicle must remain at the scene and the operator of the autonomous vehicle must provide necessary information to law enforcement. Minimum liability insurance requirements for autonomous vehicles will be the same as minimum coverages required for the taxi and limousine industry after January 1, 2020. Minimum coverages are set at 250 percent of those …

Localism, Labels, And Animal Welfare, Samuel R. Wiseman

Northwestern Journal of Law & Social Policy

The law does relatively little to improve the welfare of animals raised for food. In the short term, at least, market-based solutions appear to have more promise as a means of promoting farm animal welfare, as consumers increasingly seek out local and humanely-raised meat and eggs. To aid consumers in identifying these products, certification systems of varying degrees of rigor exist, but even these are of little use to consumers in the restaurant context, which accounts for a large percentage of meat consumption. Patrons see only finished meals, making fraud difficult to detect, and a recent newspaper investigation suggests that …

The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint

Journal Articles

Since Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and …

The Perpetuation Of Mass Incarceration: Analyzing Systemic Effects Of The U.S. Penal System, Lillian Barreto

Theses

This paper is divided into four parts, Part I. Perpetuation of a Disparate System , Part II. Perpetual Marginalization , Part III. My Personal Research and Part IV. Moving Forward . Part I serves to show the pervasive racial disparities throughout the criminal justice system and how these disparities portray a system which discriminates primarily against poor men of color. Part II shows how this community is disadvantaged in various parts of their social, economic and political lives because of the extent of punitivity and criminalization. It explains the way these disadvantages translate to men of color being discriminated against …