Northwestern University School of Law
BLR
College of William & Mary Law School
Washington University School of Law
Georgetown University Law Center
Maurer School of Law: Indiana University
Claremont Colleges
Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness,
2014
SelectedWorks
Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding
Dillon A Redding
This note argues that the preservation of Antarctica for peaceful research and internationally cooperative activity as envisioned originally by the Antarctic Treaty in 1961 has gone unrealized amid growing international interest in the strategic advantages offered by Antarctica, including the possibility of large swathes of mineral deposits and optimal locations for satellite stations. Part 1 describes the motivations behind the Antarctic Treaty System (ATS) and outlines the relevant provisions of the Antarctic Treaty. Part 2 examines the military advantages to a state presence in Antarctica and the ways in which the ATS allows for such a presence to be carried ...
Can We (Anti)Trust Leed?: An Analysis Of The Antitrust Implications For The Green Building Movement,
2014
Boston College Law School
Can We (Anti)Trust Leed?: An Analysis Of The Antitrust Implications For The Green Building Movement, Jessica Alfano
Boston College Environmental Affairs Law Review
Sustainable construction and energy efficient structures are en vogue, and a “green building movement” has produced buildings all over the country and the world that are constructed from sustainable, energy efficient materials meant to minimize the building’s impact on the environment. A leader in this movement is the U.S. Green Building Council (USGBC), a private, non-profit organization that stresses sustainability in all areas of construction. The USGBC’s flagship work is a rating system called Leadership in Environmental Design (LEED) that measures and endorses the sustainability of a building. The success of this movement in general and the ...
Drafting Competition Law For Developing Jurisdictions: Learning From Experience,
2014
NELLCO
Drafting Competition Law For Developing Jurisdictions: Learning From Experience, Eleanor M. Fox, Michal S. Gal
New York University Law and Economics Working Papers
Developing jurisdictions often share some socio-economic characteristics, including highly concentrated markets, state ownership of major businesses, scarce human and financial resources, poor infrastructure, systemic poverty, cronyism, and corruption. This article attempts to sketch some of the implications of such characteristics on the competition law rules to be adopted by developing jurisdictions, based, inter alia, on the experience some developing jurisdictions already have with such laws. The analysis raises intriguing and complex issues, such as what the country seeks to and can probably derive from a competition law; What should be the presumptions that stand at the basis of the law ...
Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty,
2014
Boston College Law School
Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw
Boston College Law Review
The Supreme Court’s increasing use of science and social science in its decision making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay—defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or ...
The Basis For Noerr-Pennington Immunity: An Argument Based On Supreme Court Precedent That Federal Antitrust Law Forms The Foundation Of Noerr-Pennington, Not The First Amendment,
2014
SelectedWorks
The Basis For Noerr-Pennington Immunity: An Argument Based On Supreme Court Precedent That Federal Antitrust Law Forms The Foundation Of Noerr-Pennington, Not The First Amendment, Michael Pemstein
Michael Pemstein
Under the Noerr-Pennington doctrine defendants are immune from liability for violations of federal antitrust law that result from their efforts to influence the passage or enforcement of laws, even if the laws they advocate for, or their means of advocacy, have anticompetitive effects. Many courts have assumed that the Noerr-Pennington doctrine is based solely on the protections afforded by the First Amendment right to petition and have extended the Noerr-Pennington doctrine to a wide variety of torts outside the antitrust context based on this assumption. This article argues that these courts have failed to recognize that Noerr-Pennington’s protections are ...
Grounding Into A Double Standard: Understanding And Repealing The Curt Flood Act,
2014
University of Massachusetts School of Law
Grounding Into A Double Standard: Understanding And Repealing The Curt Flood Act, Brett J. Butz
University of Massachusetts Law Review
This note calls for an end to Major League Baseball's statutory exemption from antitrust law for acts that are considered part of the "business of baseball." The Curt Flood Act was a Congressional mistake, the product of years of faulty analysis and absurd holdings by the Supreme Court. This note will explain how the exemption came to fruition, outline the various problems with its inception, and conclude by proposing that Major League Baseball should be subject to antitrust law, just like all other professional sports leagues.
The Challenges Involved With The Application Of Article 102 Tfeu To The New Economy And The Implications For The Google Case,
2014
SelectedWorks
The Challenges Involved With The Application Of Article 102 Tfeu To The New Economy And The Implications For The Google Case, Joyce Verhaert Ll.M
Joyce Verhaert LL.M
On both sides of the Atlantic, the European Commission as well as the US Federal Trade Commission, have been investigating various business practices of Google. In addition, Google has also drawn the attention of several National Competition Authorities across Europe. This is the first time that Article 102 of the Treaty on the Functioning of the European Union (TFEU) has been applied to a search engine. As a result, the examination involves intricate issues related to specific characteristics of markets within the New Economy in which search engines operate. The investigation into Google’s behaviour has raised the question whether ...
Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation,
2014
Seattle University School of Law
Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien
Seattle University Law Review
The global investigations into the manipulation of the London Interbank Offered Rate (Libor) have raised significant questions about how conflicts of interest are managed for regulated entities contributing to benchmarks. An alternative framework, which brings the management of the rate process under direct regulatory supervision, is under consideration, coordinated by the International Organization of Securities Commissions taskforce. The articulation of global principles builds on a review commissioned by the British government that suggests rates calculated by submission can be reformed. This paper argues that this approach is predestined to fail, precisely because it ignores the lessons of history. In revisiting ...
The Timing And Source Of Regulation,
2014
Seattle University School of Law
The Timing And Source Of Regulation, Frank Partnoy
Seattle University Law Review
The distinction between specific concrete rules and general abstract principles has engaged legal theorists for decades. This rules–principles distinction has also become increasingly important in corporate and securities law, as well as financial market regulation. This Article adds two important variables to the rules–principles debate: timing and source. Although these two variables are relevant to legal theory generally, the specific goal here is not to address and engage the rules versus principles literature directly. Rather, the goal here is to ask whether the debate about financial market regulation might benefit from a more transparent analysis of temporal and ...
The New Policing Of Business Crime,
2014
Seattle University School of Law
The New Policing Of Business Crime, Rachel E. Barkow
Seattle University Law Review
The central goal of this Article is to describe the burgeoning turn to new policing techniques in the business crime context and to offer some initial thoughts on the promises and limits of the approach. Part II begins by explaining the traditional or “old policing” of business crime. After implementing an initial strategy that focused on pursuing individuals, the government turned its attention to the organizations where those individuals operated. It increased the sanctions for violators and sought to target companies in an effort to prompt them to adopt internal compliance pro-grams. The focus on company compliance programs was designed ...
Deferred Prosecutions In The Corporate Sector: Lessons From Libor,
2014
Seattle University School of Law
Deferred Prosecutions In The Corporate Sector: Lessons From Libor, Justin O'Brien, Olivia Dixon
Seattle University Law Review
Since 2008, the global economic downturn has significantly in-creased operating pressures on major corporations. Additionally, there has been a corresponding increase in corporate tolerance for corruption, which has coincided with a marked preference by regulators in settling, rather than litigating, enforcement actions. This Article argues that the expansion of prosecutorial authority without appropriate accountability restraints is a major tactical and strategic error. It evaluates whether the mechanism can be made subject to effective oversight. It argues that the current frame-work in the United States is highly problematic, leading to settlements that generate newspaper headlines but not necessarily cultural change. It ...
Enhancing The Transparency Dialogue In The “Santiago Principles” For Sovereign Wealth Funds,
2014
Seattle University School of Law
Enhancing The Transparency Dialogue In The “Santiago Principles” For Sovereign Wealth Funds, Adam D. Dixon
Seattle University Law Review
The financial crisis ultimately caused Western governments to welcome sovereign wealth fund (SWF) investment as a way to put a floor under collapsing markets and to provide a set of voluntary principles that would underwrite SWFs’ claim to legitimacy in the international community. In the autumn of 2007, then U.S. Treasury Secretary Henry Paulson, in conjunction with the International Monetary Fund, convened the International Working Group of SWFs (IWG) to draft a set of generally accepted principles and practices. These principles are referred to as the “Santiago Principles.” The implicit objective of these twenty-four voluntary principles is to promote ...
Peering Into The Comcast-Netflix Deal,
2014
Boston College Law School
Peering Into The Comcast-Netflix Deal, Daniel A. Lyons
Boston College Law School Faculty Papers
No abstract provided.
The Strategic Use Of Download Limits By A Monopoly Platform,
2014
NELLCO
The Strategic Use Of Download Limits By A Monopoly Platform, Nicholas Economides, Benjamin E. Hermalin
New York University Law and Economics Working Papers
We consider a heretofore unexplored explanation for why platforms, such as Internet service providers, might impose download limits on content consumers: doing so increases the degree to which those consumers view content providers’ products as substitutes. This, in turn, intensifies competition among providers, generating greater surplus for consumers. A platform, in turn, can capture this increased surplus by charging consumers higher access fees. Even accounting for congestion externalities, we show that a platform will tend to set the download limit at a lower level than would be welfare-maximizing; indeed, in some instances, so low that no download limit is welfare ...
Has The Cftc Gone Too Far In Trying To Keep The American Economy Safe From Cross-Border Swaps?,
2014
SelectedWorks
Has The Cftc Gone Too Far In Trying To Keep The American Economy Safe From Cross-Border Swaps?, Gabriel Lau
Gabriel Lau
With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010, the Commodity Futures Trading Commission (“CFTC”) received the daunting task regulating swap markets. Following two iterations of proposed guidance and comment periods, the CFTC released its finalized “Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations” (“Guidance”) on July 26, 2013. In the Guidance, the CFTC gives its interpretation and policy outlook for promulgating rules with respect to the regulation of cross-border swaps. This paper examines both the critiques of the Guidance, including issues of international comity and rule promulgation procedures, and ...
Behavioral International Law,
2014
SelectedWorks
Behavioral International Law, Tomer Broude
Tomer Broude
Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral ...
In Search Of Effective Ethics & Compliance Programs,
2014
University of Tennessee, Knoxville
In Search Of Effective Ethics & Compliance Programs, Maurice E. Stucke
Maurice E Stucke
The U.S. Sentencing Commission’s Organizational Guidelines for over twenty years have offered firms a significant financial incentive to develop an ethical organizational culture. Nonetheless, corporate crime persists. Too many ethics programs remain ineffective. As this Article explores, the Guidelines' current approach is not working. The evidence, including sentencing data over the past twenty years, reveals that few firms have effective ethics and compliance programs. Nor is there much hope that the Guidelines' incentive will induce companies, after the economic crisis, to become more ethical. The problem is not attributable to three assumptions underlying the Guidelines. The empirical research ...
Navigating The Turbulence: The First Circuit Clarifies The Preemptive Scope Of The Airline Deregulation Act In Brown V. Unived Airlines,
2014
Boston College Law School
Navigating The Turbulence: The First Circuit Clarifies The Preemptive Scope Of The Airline Deregulation Act In Brown V. Unived Airlines, Michael Welsh
Boston College Law Review
On July 9, 2013, in Brown v. United Airlines, Inc., the U.S. Court of Appeals for the First Circuit held that the Airline Deregulation Act (“ADA”) preempted skycaps’ common law tortious interference and unjust enrichment claims. In so holding, the First Circuit articulated a two-pronged test in an attempt to provide clarity to the relationship between the savings clause and the preemption clause of the ADA. This Comment argues that the First Circuit’s two-pronged test is faithful to U.S. Supreme Court jurisprudence and should serve as a model for other federal appeals courts until the Supreme Court ...
Bork And Microsoft: Why Bork Was Right And What We Learn About Judging Exclusionary Behavior,
2014
NELLCO
Bork And Microsoft: Why Bork Was Right And What We Learn About Judging Exclusionary Behavior, Harry First
New York University Law and Economics Working Papers
In 1998, twenty years after publishing The Antitrust Paradox, Robert Bork wrote: “The antitrust case brought by the Department of Justice against Microsoft is rock solid.”
How could Robert Bork, who had labored for his whole professional life to cut antitrust down, come out in support of an aggressive monopolization suit against a leading high-technology firm, indeed, an innovating firm that had arguably generated huge benefits for those consumers whose welfare Bork thought should be antitrust’s only concern? Had Bork undergone some sort of conversion that led him to see the need to protect small competitors from the depredations ...
What About Green Stamps? A Comment On The Ftc's Section 5 Authority,
2014
NELLCO
What About Green Stamps? A Comment On The Ftc's Section 5 Authority, Harry First
New York University Law and Economics Working Papers
Commissioner Joshua Wright has started his tenure as an FTC Commissioner by stepping into the long-running debate over the scope of the Commission’s authority, as broadly set out in a 1972 Supreme Court decision, FTC v. Sperry & Hutchinson Co. Commissioner Wright argues that S&H should be abandoned, just as "updated economic thinking" has led us to abandon other cases of that era.
In this essay I provide a closer look at the actual case that the FTC brought against S&H. I argue that the Commission’s decision was carefully based on competitive effects and consumer injury, and ...
