Law Commons^™

Drug Ideologies Of The United States, Macy Montgomery

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The United States has been increasingly creating lenient drug policies. Seventeen states and Washington, the District of Columbia, legalized marijuana, and Oregon decriminalized certain drugs, including methamphetamine, heroin, and cocaine. The medical community has proven that drugs, including marijuana, have myriad adverse health side effects. This leads to two questions: Why does the United States government continue to create lenient drug policies, and what reasons do citizens give for legalizing drugs when the medical community has proven them harmful? The paper hypothesizes that the disadvantages of drug legalization outweigh its benefits because of the numerous harms it causes, such as …

3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom

Evan R. Youngstrom

Today, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must be …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

On Ronald Coase As Political Economist”, Walter E. Block

Walter E Block

Despite Coase’s many and important contributions to economics he has mislead the profession of economics with his work in social costs, for which he is perhaps most famous. If his analytic model were incorporated into the actual practice of law, this would undermine the rule of law and private property rights, and, with them, all hope for prosperity and economic growth. In addition, his views on this topic are manifestly unjust. This all stems, in the present analysis, from Coase’s inability to make a distinction between peaceful cooperation and initiatory violence, the most important one in all of political economy …

Is Moderation The Highest Virtue? A Comparative Study Of A Middle Way Of Control Transaction Regimes, Yueh-Ping Yang, Pin-Hsien Lee

Yueh-Ping Yang

Comparative studies of control transaction regimes mostly compare between the Market Rule as adopted in the U.S. and the General Offer Rule ad adopted in European Union, while paying less attention to the Partial Offer Rule, a middle way model adopted in many East Asian countries such as Japan, South Korea, China, Taiwan, etc. In this paper, we attempt to fill this gap by highlighting the Partial Offer Rule adopted in these countries, analyzing this rule’s theoretical foundation and observing its implementation in practice. Our theoretical analyses of the Partial Offer Rule are comprised of two parts. First, by adding …

Tying And Bundled Discounts: An Equilibrium Analysis Of Antitrust Liability Tests, Melanie S. Williams

Melanie S. Williams

Courts have struggled with determining when bundled discounts constitute unlawfully anticompetitive behavior. The current circuit split reflects an absence of consensus. This lack of legal guidance creates uncertainty in the market, with firms being given inconsistent – and sometimes contradictory - standards on how to avoid antitrust liability.

For the most part, we consider a standard paradigm for analyzing bundled discounts. Suppose that there are two firms. Firm 1 produces a monopoly product, A, and also another product, B, which competes with another version of B produced by Firm 2. The concern is the extent to which the price paid …

Health Care And The Balance Billing Problem: The Solution Is The Common Law Of Contracts And Strengthening The Free Market For Health Care., George A. Nation Iii

George A Nation III

A large and growing group of insured patients is being unfairly burdened by hospitals’ exorbitant chargemaster prices. The burden is brought to bear on these patients through a process known as balance billing. For a variety of reasons hospital networks are becoming narrower as hospital systems contract with fewer insurers, and as a result, more and more patients are receiving balance bills. The practice of balance billing puts upward pressure on health care prices in general. That is, this practice leads to higher prices across the board for the uninsured, the out-of-network insured and even the in-network insured. This article …

The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi

Tonja Jacobi

Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard—and the left-right division on the Court is considered so entrenched—that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that—that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways …

Path-Dependent Deadlock: The Institutional Causes Of The Euro Crisis, Samuel Dahan Dr.

Samuel Dahan Dr.

@font-face { font-family: "CG Times"; }p.MsoNormal, li.MsoNormal, div.MsoNormal { margin: 0in 0in 0.0001pt; text-align: justify; text-indent: 0.25in; font-size: 12pt; font-family: "CG Times","serif"; }p.MsoFootnoteText, li.MsoFootnoteText, div.MsoFootnoteText { margin: 0in 0in 0.0001pt; text-align: justify; text-indent: 0.25in; font-size: 10pt; font-family: "CG Times","serif"; }span.MsoFootnoteReference { vertical-align: super; }span.FootnoteTextChar { font-family: "CG Times","serif"; }.MsoChpDefault { font-size: 10pt; }div.WordSection1 { page: WordSection1; } We argue that the characterization of the financial turmoil in the European Monetary Union as merely a sovereign debt crisis is inaccurate insofar as the deterioration of public finances represents the culmination of a process: legal and institutional flaws laid the ground for …

After Citizens United: Extending The Liberal Revolution To The Multinational Corporation, Daniel J.H. Greenwood

Daniel J.H. Greenwood

This Article proposes several routes to reverse Citizens United, the Supreme Court case holding that corporate campaign spending is “speech” protected by the First Amendment.

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values.

The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights …

Visualizing Dna Proof, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

DNA proof inherently involves the use of probability theory, which is often counterintuitive. Visual depictions of probability theory, however, can clarify the analysis and make it tractable. A DNA hit from a large database is a notoriously difficult probabi­li­ty theory issue, yet the visuals should enable courts and juries to handle it. The Puckett facts are an example of a general approach: A search in a large DNA database produces a hit for a cold crime from 1972 San Francisco. Probability theory allows us to process the probabilities that someone else in the database, someone not in the database, or …

Puzzles In Controlling Shareholder Regimes And China: Shareholder Primacy And (Quasi) Monopoly, Sang Yop Kang

Sang Yop Kang

Professor Mark Roe explained that the shareholder wealth maximization norm (“the norm”) is not fit for a country with a (quasi) monopoly, because the norm encourages managers to maximize monopoly rents, to the detriment of the national economy. This Article provides new findings and counter-intuitive arguments as to the tension created by the norm and (quasi) monopoly by exploring three key corporate governance concepts that Roe did not examine—(1) “controlling minority structure” (CMS), where dominant shareholders hold a fractional ownership in their controlled-corporations, (2) “tunneling” (i.e., illicit transfer of corporate wealth to controlling shareholders), and (3) Chinese state-owned enterprises (SOEs). …

Neither Savior Nor Bogeyman: What Waits Behind The Door Of Third-Party Litigation Financing?, Jeremy Kidd

Jeremy Kidd

The arguments for and against third-party litigation financing are based on incorrect assumptions regarding the impacts on total litigation. A formal model incorporating the choices of plaintiff, lawyer, and financier shows only minimal impact on total litigation, largely positive. However, after addressing the potential for long-term, strategic behavior by financiers, it is obvious that some dangers remain. Divorced from the dramatic claims of proponents and opponents, litigation financing is merely a tool that can be used for good or bad, and differentiating by types of claims and the incentives of the parties allows that tool to be appropriately used.

“To Promote The General Welfare” Addressing Political Corruption In America, Bruce M. Owen

Bruce Owen

Systemic (but lawful) political corruption reduces well-being and equity in America. Madisonian democracy is no longer capable of containing such corruption. Proposals currently on the table to stem corruption are unlikely to be effective and tend to undermine basic rights. This essay describes a new approach—regulating the output of corrupted legislative and administrative processes, rather than the inputs. Providing for substantive ex post review of direct and delegated legislation would be far more protective of the “general welfare” of the People than other reforms, while no more or less difficult to implement. Supporting an umpire proposal may be a dominant …

The Customary Practice Of Gerawee In Afghanistan: A Case For Transitioning To Real Equity-Based Finance, Haroun Rahimi

Haroun Rahimi

The customary practice of Gerawee, in principle, refers to a specific form of synthetic loan. It is a pledge-lease transaction that enables owners of immovable properties to obtain financing based on the market value of those properties in exchange for either paying regular payments in form of rent or transferring the right to lease those properties to a financer. The practice has been developed to help debtors and creditors avoid the prohibition of interest bearing loans under Shari’ah. Despite the efforts of some Muslim jurists to justify the practice under Shari’ah, it is widely criticized. In particular, Afghan muftis …

Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight

Jared J Hight

The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily …

The Moral Undercurrent Beneath The Regulatory Regime Of Investor Protection, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

Daniel J.H. Greenwood

Business corporations are critical institutions in our democratic republican market-based economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply …

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Broad Shareholder Value And The Inevitable Role Of Conscience, Paul D. Weitzel, Zachariah J. Rodgers

Paul D. Weitzel

This article proposes an integrative solution to the modern debate on corporate purpose, the question of whether directors and officers must solely maximize profits or whether they may consider the effects on employees, the environment or the community. Many find pure profit maximization unseemly and suggest alternative theories, typically arguing that corporations owe a duty to a broader range of stakeholders. This position is inconsistent with the case law and unnecessary to allow conscience in the board room. We resolve the issue more simply by acknowledging that the purpose of a corporation is to promote the shareholders’ interests, which includes …

Bridgefunding Is Crowdfunding For Startups Across The Private Equity Gap, Seth C. Oranburg

Seth C Oranburg

Title III of the JOBS Act of 2012, which attempts to encourage entrepreneurship by allowing startups and small business to sell stock to the general public over the Internet through “crowdfunding,” is completely backwards. Its ceiling should be a floor—the $1 million limit should be inverted. By capping startups at raising $1 million from crowdfunding, the JOBS Act does not address the private equity gap, a fundamental problem in startup markets, and exposes unsophisticated investors to risk and fraud. This Article presents a regulatory framework premised on “bridgefunding,” an approach that this article develops to protect new investors by encouraging …

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …

Domestic Judicial Defiance In The European Union: A Systemic Threat?, Arthur Dyevre

Arthur Dyevre

In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, recent decisions by national courts may seem to bode ill for the authority of EU law. In January 2012, the Czech Constitutional Court declared the decision of the Court of Justice in the Landtová case ultra vires. This came on the heels of other domestic rulings stressing the constitutional limits of integration. More recently, in February 2014, the German …

Hospital Chargemaster Insanity: Heeling The Healers, George A. Nation Iii

George A Nation III

Hospital list prices, contained in something called a chargemaster are insanely high, often running 10 times the amount that hospitals routinely accept as full payment from insurers. Moreover, the relative level of a particular hospital’s chargemaster prices bears no relationship to either the quality of the services the hospital provides or, to the cost of the services provided. The purpose of these fictitious list prices is to serve as a starting point or anchoring point, for negotiations with third-party payers regarding the amount that they will actually pay the hospital for it’s goods and services.

Ironically, there is widespread agreement, …

Popular Culture's Portrayal Of Attorney Decision-Making And It's Consequences- An Analysis Of An Attorney's Internal Ethical Conflict In Film, Tara M. Parente

Tara M. Parente

This paper explores how popular culture portrays attorney decision-making and its consequences. This paper compares and contrasts two films in order to exemplify how attorneys are portrayed throughout film and how this carries over into real life. Attorneys are faced with ethical dilemmas at all times, especially throughout career advancement and the decisions made tend to affect every aspect of an attorney's life.

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Governing For The Corporations: History And Analysis Of U.S. Promotion Of Foreign Investment, Michael R. Miller

Michael R Miller

This paper explores and analyzes U.S. government support for foreign investors, especially major oil companies.

Throughout the 20th Century the US government has repeatedly used its international political influence to benefit US corporate activities abroad. The US government and others assumed initially that this was in the larger interests of the United States because US companies would represent and promote the United States’ policy agenda.

However, US corporate activities abroad over the last century seem to indicate this assumption was flawed. In numerous examples, US corporations have either ignored or thwarted the stated interests of the US government. At first …

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Context Matters--What Lawyers Say About Choice Of Law Decisions In Merger Agreements, Juliet P. Kostritsky

Juliet P Kostritsky

ABSTRACT: The study of choice of law provisions in merger agreements yields various theories as to how much thought parties put into them, and what factors influence such decisions. Eisenberg and Miller found a shift to New York law and other scholars later hypothesized that parties specify New York law rather than Delaware law because New York law is more formalistic. However, a study of 343 merger agreements, consisting of 15 lawyer interviews and a survey sent to 812 lawyers, suggests differently. First, there is no shift from Delaware to New York. Second, a desire for formalistic law is not …

The Law And Economics Of Microfinance, Katherine Helen Mary Hunt

Katherine Helen Mary Hunt

Financial inclusion may be jargon which appeals to international donors and academics, but the strategic implementation in developing countries is often based on international du jour priorities, such as microfinance. The topic of microfinance is highly debated in the academic literature, although little empirical work has been published. Further, no literature to date has considered microfinance from a law and economics perspective. This paper seeks to contribute to the gap in the literature by considering how microfinance has evolved to address the credit market failure, and how microfinance regulation should be designed to promote long term financial inclusion via financially …