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The American Antimonopoly Tradition: Origins, Contradictions, Transformations, Daniel A. Crane

Articles

Proponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades …

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Articles

Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

Fifty Years Of 'Cut To Grow': How Changing Narratives Around Corporate Tax Policy Have Undermined Child And Family Well-Being, Reuven S. Avi-Yonah, Emily Divito, Niko Lusiani

Articles

What follows in this report is an assessment, though not exhaustive, of the central worldviews and set of assumptions driving key US corporate tax reform moments in history—and their consequences for the well-being of children and families in the US. Though political narratives of all kinds are never cleanly chronological (and this remains true of those pertaining to corporate taxation and well-being policies), we aim to build on existing understanding of how dominant narratives come to be and how they, to the extent that they do, drive corporate tax policy outcomes in the US. Looking back over the past 50 …

Why The United States Needs A Gaar, Reuven S. Avi-Yonah

Articles

The Internal Revenue Code of 1986, as amended, has over 1 million words and more than 5,600 pages. It is by far the longest and most complicated law in the U.S. code. The regulations add over 4 million words. Why?

A Fractured Supreme Court: Select Criminal Law And Procedure Cases From The Supreme Court’S 2023-24 Term, Eve Brensike Primus, Jordan Schuler

Articles

In its 2023-2024 Term, the Supreme Court outlined the contours of when a former President of the United States would be immune from criminal prosecution; issued important decisions interpreting the scope of the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, the Confrontation Clause, and the Second Amendment right to bear arms; decided a number of important statutory interpretation cases; and continued to avoid Fourth Amendment issues, only addressing them in the context of a malicious prosecution charge. Perhaps more striking than the Court’s decisions in these cases, though, was the Justices’ lack of consensus. Of the 16 criminal …

A Law At War With Itself: Character Evidence And The Doctrine Of Chances, Len Niehoff, Shannon Hickey

Articles

Certain legal principles have raging within them a kind of civil war. Important but abstract policy concerns pull the doctrine in one direction; common sense and practical experience pull it in another. Casualties ensue.

Perhaps no body of legal doctrine better exemplifies this sort of internal conflict than the general ban on character evidence, as embodied in Federal Rule of Evidence 404(a)(1). That rule states: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait.” The rule has deep roots in the …

Framing A Feminist Phenomenological Inquiry Into The Lived Experiences Of Women Entrepreneurs, Edicleia Oliveira, Serge Basini, Thomas M. Cooney

Articles

Purpose – This article aims to explore the potential of feminist phenomenology as a conceptual framework for advancing women’s entrepreneurship research and the suitability of interpretative phenomenological analysis (IPA) to the proposed framework.

Design/methodology/approach – The article critically examines the current state of women’s entrepreneurship research regarding the institutional context and highlights the benefits of a shift towards feminist phenomenology.

Findings – The prevailing disembodied and gender-neutral portrayal of entrepreneurship has resulted in an equivocal understanding of women’s entrepreneurship and perpetuated a male-biased discourse within research and practice. By adopting a feminist phenomenological approach, this article argues for the importance …

Enhancing Inclusive Entrepreneurial Activity Through Community Engagement Led By Higher Education Institutions, Emma O'Brien, Thomas M. Cooney

Articles

While supporting entrepreneurship through government intervention has become a global phenomenon, the OECD (2021) has identified that several communities (including women, youth, seniors, unemployed and immigrants) remain under-represented in terms of entrepreneurial activity. Inclusive entrepreneurship policies seek to enhance economic and social inclusion and emphasise the significant contribution that people from within these communities could make to local and regional development if appropriate support was offered. The purpose of this study is to examine how higher education institutions (HEIs) can co-create inclusive entrepreneurial training initiatives with local communities that support economic and social inclusion.

A Critical Race Theory Analysis Of Critical Race Theory Bans, Caroline Mala Corbin

Articles

A majority of state legislatures have introduced bills prohibiting public schools from teaching certain "divisive concepts" attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that …

Confronting Structural Inequality In State Labor Law, Andrew Elmore

Articles

Low-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses …

Politicizing Antisemitism Amidst Today's Educational Culture Wars, Lili Levi

Articles

The traditional narrative of American Jewry emphasizes American exceptionalism with respect to antisemitism. But there have been clear signs of a resurgence of public antisemitism in the United States even before the massive rise in antisemitic expression and incidents associated with the Israel-Hamas war of fall 2023.

One of the notable aspects of the rise and normalization of antisemitic expression is the deployment of antisemitism as a political tool. For example, in addition to Democrats and Republicans accusing each other of complicity in antisemitism, both federal policy since the Trump era and state anti-antisemitism legislation have targeted campus antisemitism in …

The Belfast/Good Friday Agreement And Transformative Change: Promise, Power And Solidarity, Fionnuala Ní Aoláin

Articles

In 2023 the 1998 Belfast/Good Friday Agreement marks its twenty-fifth anniversary. For many the Agreement projects a global image of a successfully concluded end to conflict. However, key aspects of the agreement remain under-enforced or simply undelivered: in particular, provisions related to significant and wide-ranging guarantees addressing human rights and equality of opportunity. As a result, socio-economic and cultural deficits persist, undermining the capacity to achieve a ‘positive peace’. In this article we address the question of how transformative the Agreement and associated reforms have been in addressing the root causes of the conflict and the structures that underpinned it. …

Centralizing Pharmaceutical Innovation, Sapna Kumar

Articles

The United States has a mostly decentralized system for promoting new medicine development. By offering patents and regulatory exclusivities, the government incentivizes pharmaceutical companies to invent and bring to market new medicines. Although this development model offers benefits for promoting innovation, it comes at a cost: Market-based incentives lead companies to prioritize research and development (“R&D”) for medicines that offer a safe path to profitability, as opposed to those that offer the greatest social benefit. In particular, pharmaceutical companies are reluctant to invest in R&D for critically-needed antibiotics and infectious disease vaccines—both of which are difficult to develop and provide …

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

Articles

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

The Conservative Case For Esg, Richard Painter

Articles

There is a growing consensus across the political spectrum that corporations should not just make money for shareholders but also advance the public good. Conservatives and liberals often disagree about what the public good is, or what the priorities of corporate governance should be, but both sides are discontent with corporations focusing only on profits.

This Article discusses reasons why political conservatives should support efforts to include environmental, social and governance (ESG) factors in corporate governance. Conservatives do not embrace contemporary ESG rhetoric which they associate with liberal social and economic viewpoints, but conservatives nonetheless oppose corporations maximizing profits at …

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

Articles

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …

“Criminalizing” Depositions In Arbitration, Mitch Zamoff

Articles

Civil litigation–style deposition practice is preventing commercial arbitration from reaching its full potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among alternative dispute resolution experts that meaningful limits must be imposed on arbitration discovery to unlock the efficiency benefits of arbitration, depositions continue to feature prominently in commercial arbitrations for at least three reasons. First, civil litigators are addicted to depositions. They reflexively propose overdone deposition practice in arbitrations that replicates their litigation experience. Second, arbitrators may hesitate to disallow deposition discovery out of fear that their awards will be vacated for failure to …

When An Indicted Candidate Wins The Presidency: What Happens To The Trials If Donald Trump Wins The Election?, Richard Painter, Claire Finkelstein

Articles

For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department …

The Three-Verdict Problem, Jack Whiteley

Articles

!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that …

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

Articles

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …

Permitting The Energy Transition, James W. Coleman

Articles

The United States now has a landmark climate and clean energy law: the Inflation Reduction Act. The Act may provide more than a trillion dollars in spending on new clean-energy technology—over $8,000 for every household in the United States. What will Americans receive for this titanic investment? The answer largely turns on how quickly new clean-energy projects will receive permission to build.

As this Article explains, a fundamental irony of the energy system is that the cleaner energy sources we are now funding are more dependent on building far-flung infrastructure than our traditional energy sources. Coal and oil built the …

Metals Derivatives Markets And The Energy Transition, James W. Coleman, Colleen M. Baker

Articles

Despite their escalating importance, thus far, there has been minimal legal scholarship on metals derivatives markets. Given the key role of these markets in the transition to a clean energy future, increased focus on them is imperative.

Hence, it is not surprising that the agendas for the last four meetings of the Commodity Futures Trading Commission’s Energy and Environmental Markets Advisory Committee each dedicated a significant portion of the meeting to metals derivatives markets and their role in the transition to a clean energy future.

Fundamentally, the United States and the world are moving from their long-term dependence on the …

Generating A Template For An Educational Software Development Methodology For Novice Computing Undergraduates: An Integrative Review, Catherine Higgins, Ciaran O'Leary, Claire Mcavinia, Barry J. Ryan

Articles

Aim/Purpose The teaching of appropriate problem-solving techniques to novice learners in undergraduate software development education is often poorly defined when compared to the delivery of programming techniques. Given the global need for qualified designers of information technology, the purpose of this research is to produce a foundational template for an educational software development methodology grounded in the established literature. This template can be used by third-level educators and researchers to develop robust educational method-ologies to cultivate structured problem solving and software development habits in their students while systematically teaching the intricacies of software crea-tion. Background While software development methodologies are …

Biosynthesis, Classification, Properties, And Applications Of Weissella Bacteriocins, Jahnavi Kumari Singh, Palanisamy Bruntha Devi, G. Bhanuprakash Reddy, Amit K. Jaiswal, Digambar Kavitake, Prathapkumar Halady Shetty

Articles

This review aims to comprehensively chronicle the biosynthesis, classification, properties, and applications of bacteriocins produced by Weissella genus strains, particularly emphasizing their potential benefits in food preservation, human health, and animal productivity. Lactic Acid Bacteria (LAB) are a class of microorganisms well-known for their beneficial role in food fermentation, probiotics, and human health. A notable property of LAB is that they can synthesize antimicrobial peptides known as bacteriocins that exhibit antimicrobial action against both closely related and other bacteria as well. Bacteriocins produced by Weissella spp. are known to exhibit antimicrobial activity against several pathogenic bacteria including food spoilage species, …

Exploring Safety Of Machineries And Training: An Overview Of Current Literature Applied To Manufacturing Environments, Maria Elena Del Giudice, Mahnaz Sharafkhani, Mario Di Nardo, Teresa Murino, Maria Chiara Leva

Articles

A machine is described as an assembly that has a drive system installed or is planned to have a drive system installed and that is constituted of linked elements or components, at least one of which moves, that are connected for a particular application (ISO12100). Different types of risks are present in machines, and exposure to them can cause harm or even death. When risk has been adequately reduced, machinery safety considers a machine's ability to complete its intended duty throughout its life cycle. A literature review was carried out using “safety of machinery” as a keyword, which produced an …

Agro-Food Waste Valorization For Sustainable Bio-Based Packaging, Luana De S.C. Carnaval, Amit K. Jaiswal, Swarna Jaiswal

Articles

In recent years, the increase in the generation of agro-food processing waste, coupled with uncontrolled disposal and inefficient recovery methods, has raised concerns among society, industries, and the research community. This issue is compounded by the accumulation of conventional synthetic packaging. Owing to their significant environmental and economic impacts, the development of sustainable, biocompatible, and biodegradable materials has become an urgent target. In this context, research efforts have been directed toward developing new packaging materials based on renewable sources, such as agro-food waste, contributing to the circular economy concept. However, despite significant advances, novel agro-food-waste-based packaging solutions still largely remain …

Data Justice In Education: Toward A Research Agenda, Luci Pangrazio, Glenn Auld, Julianne Lynch, Carly Sawatzki, Gavin Duffy, Shelley Hannigan, Jo O'Mara

Articles

Educational institutions increasingly rely on digital platforms to deliver content and learning, monitor attendance, communicate with stakeholders, and evaluate institutional performance. Despite the efficiency and accessibility gains they offer, digital platforms are powered by personal data which, through a process of datafication, can be used to track, monitor, and profile staff and students. The insights drawn from this data can be used to shape educational and professional futures. This article examines how datafication has become a social justice issue in education, discussing the implications for well-being, decision-making, governance, and power in education. Using Hintz and colleagues framework for data justice, …

Coffee: Lighting Its Complex Ground Truth And Percolating Its Molecular Brew, Róża Paterek, Sive Geoghegan, Bernadette S. Creaven, Aoife Power

Articles

Coffee is one of the most widely traded commodities worldwide and its popularity is only increasing. The International Coffee Organisation (ICO) reported a 6% increase in global production in 2020 to 10.5 million tonnes. Coffee production is quite involved (from sowing to harvesting, processing, packaging, and storage); consequently, the industry faces major challenges in terms of the assessment of its quality, flavour, and the components which contribute to coffee's characterisation, as well as the sustainability of coffee production and global trade. This has prompted multiple studies on the nature of the aroma and taste of the many varieties of coffee …

Impact Of Population Aging On Future Temperature-Related Mortality At Different Global Warming Levels, Multi-Country Multi-City (Mcc) Collaborative Network, Patrick Goodman

Articles

Older adults are generally amongst the most vulnerable to heat and cold. While temperature-related health impacts are projected to increase with global warming, the influence of population aging on these trends remains unclear. Here we show that at 1.5 °C, 2 °C, and 3 °C of global warming, heat-related mortality in 800 locations across 50 countries/areas will increase by 0.5%, 1.0%, and 2.5%, respectively; among which 1 in 5 to 1 in 4 heat-related deaths can be attributed to population aging. Despite a projected decrease in cold-related mortality due to progressive warming alone, population aging will mostly counteract this trend, …

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Articles

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …