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From Suspicion To Sustainability In Global Supply Chains, Robert C. Bird, Vivek Soundararajan 2020 University of Connecticut

From Suspicion To Sustainability In Global Supply Chains, Robert C. Bird, Vivek Soundararajan

Texas A&M Law Review

Global supply chains power 80% of world trade, but also host widespread environmental, labor, and human rights abuses in developing countries. Most scholarship focuses on some form of sanction to motivate supply chain members, but we propose that the fundamental problem is not insufficient punishment, but a lack of trust. Fickle tastes, incessant demands for lower prices, and spot market indifference force suppliers into a constant struggle for economic survival. No trust can grow in such an environment, and few sustainability practices can take meaningful root. Responding to multiple calls for scholarship in the supply chain literature, we propose a ...


Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker 2020 University of Pennsylvania Law School

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

Faculty Scholarship at Penn Law

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work ...


The Expansive Reach Of Pretrial Detention, Paul Heaton 2020 University of Pennsylvania Law School

The Expansive Reach Of Pretrial Detention, Paul Heaton

Faculty Scholarship at Penn Law

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention ...


Transactional Scripts In Contract Stacks, Shaanan Cohney, David A. Hoffman 2020 University of Pennsylvania

Transactional Scripts In Contract Stacks, Shaanan Cohney, David A. Hoffman

Faculty Scholarship at Penn Law

Deals accomplished through software persistently residing on computer networks—sometimes called smart contracts, but better termed transactional scripts—embody a potentially revolutionary contracting innovation. Ours is the first precise account in the legal literature of how such scripts are created, and when they produce errors of legal significance.

Scripts’ most celebrated use case is for transactions operating exclusively on public, permissionless, blockchains: such exchanges eliminate the need for trusted intermediaries and seem to permit parties to commit ex ante to automated performance. But public transactional scripts are costly both to develop and execute, with significant fees imposed for data storage ...


The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

As in so many areas of law and politics in the United States, antitrust’s center is at bay. It is besieged by a right wing that wants to limit antitrust even more than it has been limited over the last quarter century. On the left, it faces revisionists who propose significantly greater enforcement.

One thing the two extremes share, however, is denigration of the role of economics in antitrust analysis. On the right, the Supreme Court’s two most recent antitrust decisions at this writing reveal that economic analysis no longer occupies the central role that it once had ...


From Tax Policy To Social Insurance, Edward D. Kleinbard 2020 University of Southern California

From Tax Policy To Social Insurance, Edward D. Kleinbard

University of Southern California Legal Studies Working Paper Series

This presentation was delivered to the Tax Section of the New York State Bar Association in January 2020. It first briefly reviews important current tax policy issues, and shows that the income tax has plenty of headroom to accommodate higher tax revenues: “Personal Income,” the government’s broadest measure of household income, is $6 trillion higher than aggregate Adjusted Gross Incomes.

The presentation then pulls back its focus to poverty and middle class life. It argues that education is the engine of economic opportunity, but the United States dishonors the principle of equality of opportunity by its unique reliance on ...


Distributive Justice And Rural America, Ann M. Eisenberg 2020 University of South Carolina School of Law

Distributive Justice And Rural America, Ann M. Eisenberg

Boston College Law Review

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically ...


The Captive Lab Rat: Human Medical Experimentation In The Carceral State, Laura I. Appleman 2020 Willamette University

The Captive Lab Rat: Human Medical Experimentation In The Carceral State, Laura I. Appleman

Boston College Law Review

Human medical experimentation upon captive, vulnerable subjects is not a relic of our American past. It is part of our present. The extensive history of medical experimentation on the disabled, the poor, the mentally ill, and the incarcerated has been little explored. Its continuance has been even less discussed, especially in the legal literature. The standard narrative of human medical experimentation ends abruptly in the 1970s, with the uncovering of the Tuskegee syphilis study. My research shows, however, that this narrative is incorrect and incomplete. The practice of experimenting on the captive and vulnerable persists. Our current approach to human ...


Straightwashing The Census, Kyle C. Velte 2020 University of Kansas School of Law

Straightwashing The Census, Kyle C. Velte

Boston College Law Review

This Article examines the “straightwashing” of the census through the “Identity Undercount”—the failure of the state to collect sexual orientation and gender identity (SOGI) population data in government surveys such as the Census. The Identity Undercount, while counting the literal bodies of LGBT people, erases their lived identity. For many in the LGBT population, their lived identity and reality is one of poverty and powerlessness, a reality contrary to the widely accepted narrative that the LGBT population is more affluent and powerful than the rest of the population. Because federal and state governments rely on population data to drive ...


On The Meaning Of Antitrust's Consumer Welfare Principle, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

On The Meaning Of Antitrust's Consumer Welfare Principle, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay addresses the ambiguities in the meaning of “consumer welfare” in antitrust, exploring the differences between the Williamson, Bork, and current understanding of that term. After weighing the alternatives it argues that the consumer welfare principle in antitrust should seek out that state of affairs in which output is maximized, consistent with sustainable competition


Taxing Bitcoin And Blockchains—What The Irs Told Us (And What It Didn’T), David J. Shakow 2020 University of Pennsylvania Law School

Taxing Bitcoin And Blockchains—What The Irs Told Us (And What It Didn’T), David J. Shakow

Faculty Scholarship at Penn Law

The IRS recently issued its second description of how it will treat Bitcoin and other blockchain assets. Some of its analysis leaves open questions that invite further consideration, and important issues remain unresolved. Moreover, because the popular Bitcoin blockchain uses a "proof of work" consensus procedure, issues relating to the alternative "proof of stake" procedure have been neglected.


Reversing The Fortunes Of Active Funds, Adi Libson, Gideon Parchomovsky 2020 Bar-Ilan University - Faculty of Law

Reversing The Fortunes Of Active Funds, Adi Libson, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Recent years have witnessed a considerable growth of passive fund at the expense of active funds. This trend picked in 2019, a year that saw passive funds surpass active funds in terms of assets under management. The continuous decline of active funds is a cause for concern. Active funds engage in monitoring of firms and partake of decision-making in companies in their portfolio. The cost of these activities are born exclusively by active funds; the benefits, by contrast, are spread over all shareholders, including passive funds that freeride on the efforts of active funds. The contraction of active funds threatens ...


Why A Wealth Tax Is Definitely Constitutional, John R. Brooks, David Gamage 2020 Georgetown University Law Center

Why A Wealth Tax Is Definitely Constitutional, John R. Brooks, David Gamage

Georgetown Law Faculty Publications and Other Works

Wealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”

These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform ...


Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A deep split in American innovation policy has arisen between new economy and old economy innovation. In a recent policy statement, the Antitrust Division of the Justice Department takes a position that tilts more toward the old economy. Its December, 2019, policy statement on remedies for Standard Essential Patents issued jointly with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology reflects this movement.

The policy statement as a whole contains two noteworthy problems: one is a glaring omission, and the other is a mischaracterization of the scope of antitrust liability. Both positions are ...


Demystifying Patent Holdup, Thomas F. Cotter, Erik Hovenkamp, Norman Siebrasse 2020 University of Minnesota Law School

Demystifying Patent Holdup, Thomas F. Cotter, Erik Hovenkamp, Norman Siebrasse

Washington and Lee Law Review

Patent holdup can arise when circumstances enable a patent owner to extract a larger royalty ex post than it could have obtained in an arms length transaction ex ante. While the concept of patent holdup is familiar to scholars and practitioners—particularly in the context of standard-essential patent (SEP) disputes—the economic details are frequently misunderstood. For example, the popular assumption that switching costs (those required to switch from the infringing technology to an alternative) necessarily contribute to holdup is false in general, and will tend to overstate the potential for extracting excessive royalties. On the other hand, some commentaries ...


O Brother Where Art Thou? The Struggles Of African American Men In The Global Economy Of The Information Age, Kenneth G. Dau-Schmidt 2020 Indiana University Maurer School of Law

O Brother Where Art Thou? The Struggles Of African American Men In The Global Economy Of The Information Age, Kenneth G. Dau-Schmidt

Indiana Journal of Law and Social Equality

No abstract provided.


Restructuring Copyright Infringement, Gideon Parchomovsky, Abraham Bell 2020 University of Pennsylvania Law School

Restructuring Copyright Infringement, Gideon Parchomovsky, Abraham Bell

Faculty Scholarship at Penn Law

Copyright law employs a one-size-fits-all strict liability regime against all unauthorized users of copyrighted works. The current regime takes no account of the blameworthiness of the unauthorized user or of the information costs she faces. Nor does it consider ways in which the rightsholders may have contributed to potential infringements, or ways in which they could have cheaply avoided them. A non-consensual use of a copyrighted work entitles copyright owners to the full panoply of remedies available under the Copyright Act, including supra-compensatory damage awards, disgorgement of profits and injunctive relief. This liability regime is unjust, as it largely fails ...


Distributive Justice And Rural America, Ann M. Eisenberg 2020 University of South Carolina - Columbia

Distributive Justice And Rural America, Ann M. Eisenberg

Faculty Publications

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically ...


Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr. 2020 University of Pennsylvania

Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal ...


Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark Cochran 2020 St. Mary's University School of Law

Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark Cochran

St. Mary's Law Journal

Abstract forthcoming


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