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Critical Tax Thinking, Edward D. Kleinbard 2019 University of Southern California

Critical Tax Thinking, Edward D. Kleinbard

University of Southern California Legal Studies Working Paper Series

This presentation considers the aims of critical tax studies and offers three suggestions. First, critical tax papers too often fixate on taxes as both the problem and the solution. In many cases, in particular when progressivity is the aim, public spending is the better policy lever. Second, one should not concede that taxation imposes an inexorable tradeoff between efficiency and equity goals. This again understates the importance of the spending side of things. Taxes are a necessary cost of funding spending, and spending in turn, by reaching places where markets are incomplete, can have efficiency payoffs greater than the deadweight ...


Behavioral Genetics And Crime, In Context, Owen D. Jones 2019 Vanderbilt University Law School

Behavioral Genetics And Crime, In Context, Owen D. Jones

Owen Jones

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.


Socioeconomic Influences On Property Crime Rates: A Study In Virginia's Counties, Mary Passley 2019 University of Lynchburg

Socioeconomic Influences On Property Crime Rates: A Study In Virginia's Counties, Mary Passley

Student Scholar Showcase

Most research on factors and causes of crime, whether property or violent crime, focuses on individuals’ behavior or their surrounding environment. In this research, I explore the idea of socioeconomic factors correlated to property crime. I conducted a retrospective design to fully explore United States Census data and crime data gathered by the Bureau of Justice Statistics to discover statistically significant variables connected to property crime. Significant findings were shown by average people per house and retail sales per capita in all counties. Additional significant findings were percent employment change and percent with high school degree or higher in low ...


Eating Our Way To Their Extinction: What Florida Should Learn From California On Banning Shark Fin Soup And The Shark Fin Trade, Bettina Tran 2019 Florida Agricultural & Mechanical University College of Law

Eating Our Way To Their Extinction: What Florida Should Learn From California On Banning Shark Fin Soup And The Shark Fin Trade, Bettina Tran

Seattle Journal of Environmental Law

Currently, it is legal to possess, sell and purchase shark fins in 38 states, Florida included. Fishermen are allowed to harvest sharks all around the world with minimal surveillance and weak regulation, causing greed to push a 400-million-year old species to the brink of extinction. Florida’s current statue is completely ineffective and toothless when it comes to shark conservation. The State needs to amend its shark fin law prohibiting the trade in all detached shark fins, for any purpose, by anyone to discontinue fueling a cruel practice. There is a federal bill pending in congress that would ban the ...


Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton 2019 American University Washington College of Law

Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition ...


Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop 2019 Georgetown University Law Center

Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear false ...


Eleven Things They Don’T Tell You About Law & Economics: An Informal Introduction To Political Economy And Law, 2019 University of Minnesota Law School

Eleven Things They Don’T Tell You About Law & Economics: An Informal Introduction To Political Economy And Law

Law & Inequality: A Journal of Theory and Practice

Many legal scholars have critiqued the dominant law and economics paradigm. However, important work is all too often neglected because it is not popularized in an accessible form. This Article features experts who synthesize their key insights into memorable and concise vignettes. Our 11 Things project is inspired by the work of the Cambridge economist Ha-Joon Chang, who distilled many facets of his work into a book called 23 Things They Don’t Tell You About Capitalism. That book was a runaway success, translated for markets around the globe, because it challenged conventional economic reasoning with a series of short ...


Online Terms As In Terrorem Devices, Colin P. Marks 2019 University of Maryland Francis King Carey School of Law

Online Terms As In Terrorem Devices, Colin P. Marks

Maryland Law Review

Online shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and check out. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant’s terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hard-pressed to find a merchant that doesn’t try to impose them somewhere on their website. Though such terms and conditions are pervasive, most consumers ...


Deputizing Family: Loved Ones As A Regulatory Tool In The "Drug War" And Beyond, Matthew J.B. Lawrence 2019 Penn State Dickinson Law

Deputizing Family: Loved Ones As A Regulatory Tool In The "Drug War" And Beyond, Matthew J.B. Lawrence

Faculty Journal Articles

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not ...


Explaining China's Legal Flexibility: History And The Institutional Imperative, Justin W. Evans 2019 Parker College of Business, Georgia Southern University

Explaining China's Legal Flexibility: History And The Institutional Imperative, Justin W. Evans

Pace International Law Review

China’s legal system appears to harbor a major tension, or even a paradox. Certainty in law facilitates economic progress, which most observers agree the Communist Party requires to maintain its power—yet the Party has opted for a flexible legal system that often impedes predictability. Prior studies explain China’s legal system as a product of certain constraints and as an expedient that allows for policy adjustments. These factors undoubtedly are at work but do not fully explain the rationale for a legal design seemingly at odds with the Party’s economic goals. To obtain a fuller view, it ...


The Warren Campaign’S Antitrust Proposals, Herbert J. Hovenkamp 2019 University of Pennsylvania Law School

The Warren Campaign’S Antitrust Proposals, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust policy promises to be an important issue in the 2020 presidential election, and for good reason. Market power measured by price-cost margins has been on the rise since the 1980s. Presidential candidate Senator Elizabeth Warren has two proposals directed at large tech platforms. One would designate large platform markets such as Amazon “platform utilities,” and prohibit them from selling their own merchandise on the platform in competition with other retailers. The other proposes more aggressive enforcement against large platform acquisitions of smaller companies.

This paper concludes that the first proposal is anticompetitive, leading to reduced output and higher prices ...


Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr. 2019 Tulane University School of Law

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.

Glynn Lunney

In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits ...


Platforms And The Rule Of Reason: The American Express Case, Herbert J. Hovenkamp 2019 University of Pennsylvania Law School

Platforms And The Rule Of Reason: The American Express Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In Ohio v. American Express Co., the Supreme Court applied antitrust’s rule of reason to a two-sided platform. The challenge was to an “anti-steering” rule, a vertical restraint preventing merchants from shifting customers who offered an AmEx card from to a less costly alternative such as Visa or Mastercard.

A two-sided platform is a business that depends on relationships between two different, noncompeting groups of transaction partners. For example, a printed periodical such as a newspaper earns revenue by selling both advertising and subscriptions to the paper itself. Success depends on a platform’s ability to maintain the appropriate ...


The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll 2019 University of Pennsylvania Law School

The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


Shareholder Collaboration, Jill E. Fisch, Simone M. Sepe 2019 University of Pennsylvania Law School

Shareholder Collaboration, Jill E. Fisch, Simone M. Sepe

Faculty Scholarship at Penn Law

Two models dominate the debate on the theory of the firm. Under the management-power model, decision-making power exclusively belongs to corporate insiders (officers and directors). The competing shareholder-power model contemplates increasing shareholder power to limit managerial authority. Both models are focused on managerial agency costs and address the appropriate allocation of power between insiders and shareholders to minimize these costs. Both models also assume that insiders and shareholders are engaged in a competitive struggle for corporate power.

Corporate practice has moved on, however. Increasingly, the insider-shareholder dynamic is collaborative, not competitive. This Article traces the development of insider-shareholder collaboration and ...


The New Titans Of Wall Street: A Theoretical Framework For Passive Investors, Jill E. Fisch, Asaf Hamdani, Steven Davidoff Solomon 2019 University of Pennsylvania Law School

The New Titans Of Wall Street: A Theoretical Framework For Passive Investors, Jill E. Fisch, Asaf Hamdani, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

Passive investors — ETFs and index funds — are the most important development in modern day capital markets, dictating trillions of dollars in capital flows and increasingly owning much of corporate America. Neither the business model of passive funds, nor the way that they engage with their portfolio companies, however, is well understood, and misperceptions of both have led some commentators to call for passive investors to be subject to increased regulation and even disenfranchisement. Specifically, this literature takes a narrow view both of the market in which passive investors compete to manage customer funds and of passive investors’ participation in the ...


Moral Diversity And Efficient Breach, Matthew A. Seligman 2019 Benjamin N. Cardozo School of Law

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them ...


The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza 2019 Boston University School of Law

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court ...


Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker 2019 Boston Univeristy School of Law

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the ...


Billionaire Taxes, Michael Simkovic 2019 USC Gould School of Law

Billionaire Taxes, Michael Simkovic

University of Southern California Legal Studies Working Paper Series

Targeted ultra-high net worth wealth taxes can fund reductions in taxes on wages. Wealth taxes are harder to avoid than existing capital gains taxes and inheritance taxes, and can be more precisely targeted toward extreme wealth. Exit taxes to prevent capital flight are consistent with business law principles governing partnerships. Valuation disputes can be managed through existing property tax mechanisms and through private law provisions called "shotgun clauses."

Most experts believe that wealth taxes are constitutional. The critical difference between wealth taxes and income taxes, the realization requirement, exists for administrative convenience, not as a constitutional requirement. Constitutional challenges can ...


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