Law Commons^™

Consumer Protection In An Era Of Globalization, Cary Coglianese, Adam M. Finkel, David T. Zaring

All Faculty Scholarship

With expanding global trade, the challenge of protecting consumers from unsafe food, pharmaceuticals, and consumer products has grown increasingly salient, necessitating the development of new policy ideas and analysis. This chapter introduces the book, Import Safety: Regulatory Governance in the Global Economy, a multidisciplinary project analyzing import safety problems and an array of innovative solutions to these problems. The challenge of protecting the public from unsafe imports arises from the sheer volume of global trade as well as the complexity of products being traded and the vast number of inputs each product contains. It is further compounded by the …

Immigration Restriction As Redistributive Taxation: Working Women And The Costs Of Protectionism In The Labor Market, Howard F. Chang

All Faculty Scholarship

In this paper, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after-tax incomes of the least skilled native workers. Policies to protect these native workers from immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages female participation in the labor force. This burden runs contrary to …

Samuel Zell, The Chicago Tribune, And The Emergence Of The S Esop: Understanding The Tax Advantages And Disadvantages Of S Esops, Michael S. Knoll

All Faculty Scholarship

Samuel Zell’s acquisition of the Chicago Tribune Company (the Tribune) in December 2007 using a little-known type of Employee Stock Ownership Plan (ESOP) made headlines. In a complicated transaction, which took nearly a year to complete, the Tribune converted from a subchapter C corporation to a subchapter S corporation, established an ESOP that purchased 100 percent of the company’s equity, and sold Zell a call option giving him the right to purchase 40 percent of the company’s equity. Press reports claim that Zell’s novel structure enabled Zell to outbid other suitors. And financial commentators predict that many acquirers will employ …

Taxation And The Competitiveness Of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds To Invest In The United States?, Michael S. Knoll

All Faculty Scholarship

Sovereign wealth funds (SWFs) control vast amounts of capital and have made and are continuing to make numerous large, high-profile investments in the United States, especially in the financial services industry. Those investments in particular and SWFs in general are highly controversial. There is much discussion of the advantages and disadvantages to the United States of investments by SWFs and there is an intense and ongoing debate over what should be the United States’ policy towards investments by SWFs. In the course of that debate, some critics have called upon the US government to abandon its long-held public position of …

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt

Faculty Scholarship

The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It …

Citizens Not United: The Lack Of Stockholder Voluntariness In Corporatepolitical Speech, Elizabeth Pollman

All Faculty Scholarship

As the Supreme Court reconsiders prior decisions upholding limits on corporate electioneering from general funds, this Essay suggests that the longstanding concern about the lack of stockholder assent to corporate political speech is more compelling than ever. Patterns of U.S. stockholding have significantly changed in the past several decades so as to heighten the concern and caution against a broad overruling of precedents. Stockholders' ability to sell their securities or pursue a derivative action, and other means of "corporate democracy," do not alleviate the concern. A broad decision in favor of Citizens United could leave even stockholders who carefully screen …

Strengthening Special Committees, Elizabeth Pollman

All Faculty Scholarship

Special committees make some of the most important decisions facing corporations. High-quality decision-making on these critical issues has become even more urgent in this time of economic volatility and outrage about corporate irresponsibility. Indeed, special committees may be increasingly in the spotlight as the current economic crisis will likely lead to a flood of shareholder litigation and, when credit markets thaw, a wave of strategic transactions. Sometimes a board will create a special committee of just one person to handle a crucial matter. This Article proposes that courts or legislatures firmly establish a preference or requirement that special committees consist …

Moral Judgment And Moral Heuristics In Breach Of Contract, Tess Wilkinson-Ryan

All Faculty Scholarship

Most people think that breaking a promise is immoral, and that a breach of contract is a kind of broken promise. However, the law does not explicitly recognize the moral context of breach of contract. Using a series of web-based questionnaires, we asked subjects to read breach of contract cases and answer questions about the legal, financial, and moral implications of each case. Our results suggest that people are quite sensitive to the moral dimensions of a breach of contract, especially the perceived intentions of the breacher. In the first study, we framed the motivation for a contractor's breach as …

The Perils Of Forgetting Fairness, Michael B. Dorff, Kimberly Kessler Ferzan

All Faculty Scholarship

No abstract provided.

Unentrapped, William W. Bratton

All Faculty Scholarship

No abstract provided.

Those Who Forget The Regulatory Successes Of The Past Are Condemned To Failure, William K. Black

Faculty Works

This paper shows that the reregulation of the savings & loan (S&L) industry was successful because the regulators correctly identified the primary cause of the second phase of the debacle as an epidemic of “accounting control fraud” and took effective measures to contain such frauds. Control frauds occur when the persons controlling a seemingly legitimate organization use it as a “weapon” to defraud. In the financial sector, accounting control fraud is the “weapon of choice.” The regulators’ primary insights were (1) that lenders optimize accounting fraud by engaging in a distinctive operational pattern that would be irrational for any honest …

United States Competition Policy In Crisis: 1890-1955, Herbert J. Hovenkamp

All Faculty Scholarship

The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition theory. Given an industrial structure with sufficient fixed costs, competition always became "ruinous," forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall were not able to solve this problem, and as a result many economists were hostile toward the antitrust laws in the early decades of the twentieth century. The ruinous competition debate came to an abrupt end in the early 1930's, when Joan Robinson and particularly Edward Chamberlin developed models that …

Neoclassicism And The Separation Of Ownership And Control, Herbert J. Hovenkamp

All Faculty Scholarship

"Separation of ownership and control" is a phrase whose history will forever be associated with Adolf A. Berle and Gardiner C. Means' The Modern Corporation and Private Property (1932), as well as with Institutionalist economics, Legal Realism, and the New Deal. Within that milieu the large publicly held business corporation became identified with excessive managerial power at the expense of stockholders, social irresponsibility, and internal inefficiency. Neoclassical economists both then and ever since have generally been critical, both of the historical facts that Berle and Means purported to describe and of the conclusions that they drew. In fact, however, within …

The Effects Of Tort Reform On Medical Malpractice Insurers’ Ultimate Losses, Patricia Born, W. Kip Viscusi, Tom Baker

All Faculty Scholarship

Whereas the literature evaluating the effect of tort reforms has focused on reported incurred losses, this paper examines the long run effects using a comprehensive sample by state of individual firms writing medical malpractice insurance from 1984-2003. The long run effects of reforms are greater than insurers' expected effects, as five year developed losses and ten year developed losses are below the initially reported incurred losses for those years following reform measures. The quantile regressions show the greatest effects of joint and several liability limits, noneconomic damages caps, and punitive damages reforms for the firms that are at the high …

Chrysler, Gm And The Future Of Chapter 11, Edward R. Morrison

Faculty Scholarship

Although they caused great controversy, the Chrysler and GM bankruptcies broke no new ground. They invoked procedures that are commonly observed in modern Chapter 11 reorganization cases. Government involvement did not distort the bankruptcy process; it instead exposed the reality that Chapter 11 offers secured creditors – especially those that supply financing during the bankruptcy case – control over the fate of distressed firms. Because the federal government supplied financing in the Chrysler and GM cases, it possessed the creditor control normally exercised by private lenders. The Treasury Department found itself with virtually the same, unchecked power that the FDIC …

Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead

Articles

Does tort law deter risky behavior in individuals? We explore this question by examining the relationship between tort immunity and volunteering. During the 1980s and 1990s, nearly every state provided some degree of volunteer immunity. Congress followed with the 1997 Volunteer Protection Act. This article analyzes these acts, identifying three motivations for them: the chilling effects of tort liability, limits on liability insurance, and moral concerns. Using data from the Independent Survey’s Giving and Volunteering surveys, we then identify a large and positive correlation between immunity and volunteering. We next consider the implications of the findings for tort theory and …

The European Magnet And The U.S. Centrifuge: Ten Selected Private International Law Developments Of 2008, Ronald A. Brand

Articles

This article considers ten developments in private international law that occurred in 2008. In doing so, it focuses on the way in which these developments demonstrate a parallel convergence of power for private international in the institutions of the European Community and dispersal of power for private international law in the United States. This process carries with it important implications for the future roles of both the European Union and the United States in the multilateral development of rules of private international law, with the EU moving toward an enhanced leadership role and the United States restricting its own ability …

The University As Constructed Cultural Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.

Of Coase And Comics, Or, The Comedy Of Copyright, Michael J. Madison

Articles

This Essay responds to There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, by Dotan Oliar and Christopher Sprigman. It argues that case studies of disciplines and domains that may be governed by intellectual property regimes are invaluable tools for comparative analysis of the respective roles of law and other forms of social order. The Essay examines the case of stand-up comedy under a lens that is somewhat broader than the one used by the authors of the original study, one that takes into account not only the social norms of individual …

Notes On A Geography Of Knowledge, Michael J. Madison

Articles

Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer. The Article offers a preliminary framework for exploring the territories of knowledge practice in which those legal landmarks appear.

The Sec And The Madoff Scandal: Three Narratives In Search Of A Story, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This essay, part of a symposium on narrative in corporate law, considers various portrayals of the complicity of the SEC in the Bernard Madoff scandal--including the Commission's own Inspector General's report issued in September 2009. It considers possible explanations (revolving door problems, incompetence and sloth, etc.) but suggests that the story is deeper and more frustrating, arising out of the relative poverty in which the SEC operates, which in turn leads to habits of thought and action that leave too much unnoticed and undone. The interesting question, then: why the poverty? The essay concludes with a political explanation. While by …

Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson

Georgetown Law Faculty Publications and Other Works

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …

Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell, Elizabeth Sheargold

Georgetown Law Faculty Publications and Other Works

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws …

Rethinking The "Law And Finance" Paradigm, Katharina Pistor

Faculty Scholarship

The label "Law and Finance" stands for a body of literature that has dominated policy-making and academic debates for the past decade. The literature has its origin in a series of papers co-authored by Andrei Shleifer, Rafael La Porta, Florencio Lopez-de-Silanes and a cohort of other researchers, including Robert Vishny, Simeon Djankov et al. (hereinafter referred to as LLS et al.). More than ten years after "Law and Finance" was first published, it seems appropriate to step back and consider the contribution this literature has made, but also to point out where it has gone astray and deviated attention from …

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.

This mundane story of the legislative process in action stands in sharp contrast to the political tale of …

Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan J. Devlin, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Unlike other forms of intellectual property, patents are universally justified on utilitarian grounds alone. Valuable inventions and discoveries, bearing the characteristics of public goods, are easily appropriated by third parties. Because much technological innovation occurs pursuant to significant expenditures—both in terms of upfront research and subsequent commercialization costs—inventors must be permitted to extract at least part of the social gain associated with their technological contributions. Absent some form of proprietary control or alternative reward system, economics predicts that suboptimal capital will be devoted to the innovative process.

This widely accepted principle comes with an important corollary: namely, that canons of …

Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison

UF Law Faculty Publications

This article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. Part II places happiness research in the context of past efforts to assess efficiency standards. Part III outlines the schism between efficiency and happiness and examines whether they can be reconciled. Part IV discusses the problems of relying on direct measures of happiness. The concept of decisional equity is described and examined in Part V.

The Subprime Crisis And The Link Between Consumer Financial Protection And Systemic Risk, Erik F. Gerding

Publications

This Article argues that the current global financial crisis, which was first called the “subprime crisis,” demonstrates the need to revisit the division between financial regulations designed to protect consumers from excessively risky loans and safety-and-soundness regulations intended to protect financial markets from the collapse of financial institutions. Consumer financial protection can, and must, serve a role not only in protecting individuals from excessive risk, but also in protecting markets from systemic risk. Economic studies indicate it is not merely high rates of defaults on consumer loans, but also unpredictable and highly correlated defaults that create risks for both lenders …

Burying The Constitution Under A Tarp, Gary S. Lawson

Faculty Scholarship

The Emergency Economic Stabilization Act of 2008, a.k.a. 'the bank bailout bill,' engendered a fair degree of political controversy during and after its enactment but relatively little constitutional controversy. That is unfortunate, and at least a bit puzzling, because, as a matter of original meaning, the statute raises important constitutional questions along at least four dimensions: it is questionable whether Congress had theenumerated power to authorize the Treasury Department to purchase securities, the specific authorizations were sufficiently vague to raise serious questions under the nondelegation doctrine, the expansion of thepowers of the Secretary of the Treasury under the statute make …