Law Commons^™

Dual Taxation - Unbalanced And Arbitrary, Benjamin M. Simon

American Indian Law Journal

"Dual Taxation" in Indian Country happens when a state assesses taxes on private, non-tribal activities or transactions on tribal land in addition to taxes assessed by a tribe. Some analysts suggest that dual (or double) taxation puts tribal governments and citizens at a disadvantage, but the situation may be more nuanced. While dual taxation has been analyzed in depth from a legal perspective, this paper analyzes its economic consequences. With taxation, the stakes can be high. State tax revenues generated on tribal lands are revenues that tribes forgo collecting, limiting the tribal resources available for economic development and social programs. …

The Fuel For Neo-Nazism, Brandon M. Rubsamen

Global Tides

This paper attempts to explain the cause of support for far-right extremism movements in Europe. It takes a comparative approach in explaining that support by first analyzing Germany and Luxembourg. In each country, politics, history, economics, and society are explored in order to elicit a root cause. Once that main factor is found, Norway and Greece are also analyzed to see if the hypothesis holds. Political stability is hypothesized to be the root cause in far-right support in Germany (and lack thereof in Luxembourg), and the examples of Norway and Greece support this hypothesis. By comparing and contrasting aspects of …

A Taxing Feminism, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Feminist perspectives are not new to tax law. The first academic piece bringing a feminist perspective to bear on tax law dates to the early 1970s, when Grace Blumberg published “Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers.” Contemporaneously, none other than Ruth Bader Ginsburg (along with her tax lawyer husband Marty Ginsburg) brought a feminist perspective to bear on tax law when she argued Moritz v. Commissioner before the Tenth Circuit Court of Appeals, as depicted in the movie On the Basis of Sex. Since then, numerous other contributions have been …

Framing The Chicago School Of Antitrust Analysis, Herbert J. Hovenkamp, Fiona Scott Morton

All Faculty Scholarship

The Chicago School of antitrust has benefited from a great deal of law office history, written by admiring advocates rather than more dispassionate observers. This essay attempts a more neutral stance, looking at the ideology, political impulses, and economics that produced the Chicago School of antitrust policy and that account for its durability.

The origins of the Chicago School lie in a strong commitment to libertarianism and nonintervention. Economic models of perfect competition best suited these goals. The early strength of the Chicago School of antitrust was that it provided simple, convincing answers to everything that was wrong with antitrust …

British Government Information Resources, Bert Chapman

Libraries Faculty and Staff Creative Materials

Provides an overview of British Government information resources. Contents include basic British economic and political background and information from British Government websites including the Department of Environment, Food, and Rural Affairs (DEFRA), Brexit related material produced by British government agencies such as the Department for Exiting the European Union,, the Ministry of Defence, the National Museum of the Royal Navy, the Home Office Visas and Immigration Section, the Office of National Statistics, Her Majesty's Treasury, the British Parliament including parliamentary committees and research agencies, the website of Member of Parliament (MP) Jacob Rees-Mogg (Conservative-North East Somerset), a webcast of House …

Health Care's Market Bureaucracy, Allison K. Hoffman

All Faculty Scholarship

The last several decades of health law and policy have been built on a foundation of economic theory. This theory supported the proliferation of market-based policies that promised maximum efficiency and minimal bureaucracy. Neither of these promises has been realized. A mounting body of empirical research discussed in this Article makes clear that leading market-based policies are not efficient — they fail to capture what people want. Even more, this Article describes how the struggle to bolster these policies — through constant regulatory, technocratic tinkering that aims to improve the market and the decision-making of consumers in it — has …

Is Antitrust's Consumer Welfare Principle Imperiled?, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust’s consumer welfare principle stands for the proposition that antitrust policy should encourage markets to produce output as high as is consistent with sustainable competition, and prices that are accordingly as low. Such a policy does not protect every interest group. For example, it opposes the interests of cartels or other competition-limiting associations who profit from lower output and higher prices. It also runs counter to the interest of less competitive firms that need higher prices in order to survive. Market structure is relevant to antitrust policy, but its importance is contingent rather than absolute – that is, market structure …

Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese

All Faculty Scholarship

This paper offers a retrospective assessment of economist George Stigler’s classic article, The Theory of Economic Regulation. Stigler argued that regulation is a product that, just like any other product, is produced in a market, and that it can be acquired from the governmental “marketplace” by business firms to serve their private interests and create barriers to entry for potential competitors. He challenged the idea that regulation arises solely to serve the public interest and demonstrated that important political advantages held by businesses can contribute to industry capture of the regulatory process. Although his argument was largely based on …

Defending A Mixed Economy, Herbert J. Hovenkamp

All Faculty Scholarship

This essay reviews Jacob S. Hacker's and Paul Pierson's very engaging book, American Amnesia: How the War on Government Led Us to Forget what Made America Prosper (2016).

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

The Political Economy Of Oil Spill Damage Assessment: Nrda And Deepwater Horizon, Matt Nichols, Judith T. Kildow Dr

Working Papers

The federal effort to quantify and capture non-market damages to coastal ecosystems from the 2010 Deepwater Horizon oil spill, Phase II of United States of America v. BP Exploration and Production, centers on the Natural Resource Damage Assessment (NRDA) process. This paper makes the case that the current NRDA process has done a poor job protecting the public interest and resolving the issues surrounding oil spills from deep water drilling activities. After 5 years, the findings of the NRDA still remain sealed from both affected maritime communities and academic researchers until litigation is settled with civil and criminal fines …

Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub

All Faculty Scholarship

Under most federal environmental laws and some health and safety laws, states may apply for “primacy,” that is, authority to implement and enforce federal law, through a process known as “authorization.” Some observers fear that states use authorization to adopt more lax policies in a regulatory “race to the bottom.” This paper presents a simple model of the interaction between the federal and state governments in such a scheme of partial decentralization. Our model suggests that the authorization option may not only increase social welfare but also allow more stringent environmental regulations than would otherwise be feasible. Our model also …

An Empirical Analysis Of Cost Recovery In Superfund Cases: Implications For Brownfields And Joint And Several Liability, Howard F. Chang, Hilary Sigman

All Faculty Scholarship

Economic theory developed in the prior literature indicates that under the joint and several liability imposed by the federal Superfund statute, the government should recover more of its costs of cleaning up contaminated sites than it would under nonjoint liability, and the amount recovered should increase with the number of defendants and with the independence among defendants in trial outcomes. We test these predictions empirically using data on outcomes in federal Superfund cases. Theory also suggests that this increase in the amount recovered may discourage the sale and redevelopment of potentially contaminated sites (or “brownfields”). We find the increase to …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Antitrust, The Internet, And The Economics Of Networks, Christopher S. Yoo, Daniel F. Spulber

All Faculty Scholarship

Network industries, including the Internet, have shown significant growth, substantial competition, and rapid innovation. This Chapter examines antitrust policy towards network industries. The discussion considers the policy implications of various concepts in the economics of networks: natural monopoly, network economic effects, vertical exclusion, and dynamic efficiency. Our analysis finds that antitrust policy makers should not presume that network industries are more subject to monopolization than other industries. We find that deregulation and the strength of competition in network industries have removed justifications for structural separation as a remedy. Also, we argue that that deregulation and competition have effectively eliminated support …

Local Rules And A Global Economy: An Economic Policy Perspective, Dan Danielsen

Dan Danielsen

This article explores the growing significance and theoretical implications of ‘local rules’—such as Chinese labour standards, US financial regulation and Swiss bank secrecy rules—in the global economy. In particular, the argument developed is that Ronald Coase’s framework for analysing the effects of legal rules on economic welfare can help to reveal important weaknesses in current international legal approaches to analysing the transnational impact of local rules as well as contribute to a ‘global economic policy perspective’ better attuned to problems of power in the global regulatory order. Such a perspective will help us to see the effects of power differences …

Human Rights Abuses Along The Dominican-Haitian Border, Calla Cloud

Human Rights & Human Welfare

A 122 mile-long border separates the Dominican Republic and Haiti on the Caribbean island of Hispaniola. Of the two countries, Haiti’s human rights abuses are much more somber than the emerging developments of the Dominican Republic. Haiti’s stagnant economic situation has contributed to perennial political instability and lack of infrastructure, having a particularly confounding affect on the rights and labor conditions of Haitian citizens. There are a myriad of reasons why Haiti is the poorest country in the Western Hemisphere. Two of the most prominent include its violent political history and the gradual deterioration of its economy. In the context …

Bonds, Stocks Or Dollars? Do Voters Care About Capital Markets In Brazil And Mexico, Anthony Petros Spanakos, Lucio Remuzat Renno Junior

Department of Political Science and Law Faculty Scholarship and Creative Works

How does vote intention in presidential elections vary according to the economic conditions of a country, especially indicators of the financial market? Does the state of the economy, both its fundamentals as well as capital market, affect variation in candidates’ percentage of vote intention in national polls? This paper tests how economic indicators influence vote intention in presidential elections in two emerging markets: Brazil and Mexico. The presidential elections of 1994, 1998, 2002, and 2006 in Brazil and 2000 and 2006 in Mexico are analyzed using all poll returns for each electoral period and corresponding economic data. The paper finds …

Elections And Economic Turbulence In Brazil: Candidates, Voters, And Investors, Tony Petros Spanakos, Lucio R. Renno

Department of Political Science and Law Faculty Scholarship and Creative Works

The relation between elections and the economy in Latin America might be understood by considering the agency of candidates and the issue of policy preference congruence between investors and voters. The preference congruence model proposed in this article highlights political risk in emerging markets. Certain risk features increase the role of candidate campaign rhetoric and investor preferences in elections. When politicians propose policies that can appease voters and investors, elections may have a limited effect on economic indicators, such as inflation. But when voter and investor priorities differ significantly, deterioration of economic indicators is more likely. Moreover, voter and investor …

The Immigration Paradox: Alien Workers And Distributive Justice, Howard F. Chang

All Faculty Scholarship

The immigration of relatively unskilled workers poses a fundamental problem for liberals. While from the perspective of the economic welfare of natives, the optimal policy would be to admit these aliens as guest workers, this policy would violate liberal ideals. These ideals would treat these workers as equals, entitled to access to citizenship and to the full set of public benefits provided to citizens. If the welfare of incumbent residents determines admissions policies, however, and we anticipate the fiscal burden that the immigration of the poor would impose, then our welfare criterion would preclude the admission of relatively unskilled workers …

The Economic Foundations Of Contemporary Slavery, Justin Guay

Human Rights & Human Welfare

“Slavery existed before money or law” (Hochschild 2005). Indeed the “peculiar institution” is one of humanity’s oldest. It has, however, evolved and manifested itself quite distinctly in different periods of history. In contrast to historical views of slavery that are associated with Chattel Slavery, numerous forms fall under the umbrella term of contemporary slavery. The United Nations (U.N.) Working Group recognizes such radically new forms as: child labor, children in conflict, trafficking in persons, sexual exploitation, and the sale of children. The International Labor Office (ILO) approaches the topic through the lens of forced labor. The ILO recognizes slavery and …

Labor Unions: A Corporatist Institution In A Competitive World, Michael L. Wachter

All Faculty Scholarship

Union membership, as a percentage of the private sector workforce, has been in decline for 50 years. I argue that the cause of this unrelenting decline is a single, fundamental factor – the change in the United States economy from a corporatist-regulated economy to one based on free competition. Most labor commentators have explained the decline by a confluence of unrelated economic and legal forces. Labor economists typically stress economic explanations, which vary from compositional shifts in the job structure to increased competition both domestically and internationally. On the other hand, labor law commentators naturally focus on labor law explanations, …

Rights-Based Approaches To Development: Introduction, Sarah Hamilton

Human Rights & Human Welfare

This digest offers a multidimensional, well-chosen, and timely compilation of resources analyzing the myriad relationships between fields devoted to the realization of human rights and human development. I appreciate having the opportunity to introduce the issue for two reasons. First, the contributors perform a tremendous service to both fields. They have created an accessible pathway to works that engage: the normative, substantive, and empirical dimensions of the human rights/development nexus; key debates among theoreticians, policy-makers, and practitioners concerning this nexus; inclusive analysis of institutional frameworks and actors; and attention to both opportunities for, and challenges to, the realization of increasingly …

Bankruptcy Judges And Bankruptcy Venue: Some Thoughts On Delaware, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …

In Defence Of Exploitation, Justin Schwartz

Justin Schwartz

The concept of exploitation is thought to be central to Marx's Critique of capitalism. John Roemer, an analytical (then-) Marxist economist now at Yale, attacked this idea in a series of papers and books in the 1970s-1990s, arguing that Marxists should be concerned with inequality rather than exploitation -- with distribution rather than production, precisely the opposite of what Marx urged in The Critique of the Gotha Progam.

This paper expounds and criticizes Roemer's objections and his alternative inequality based theory of exploitation, while accepting some of his criticisms. It may be viewed as a companion paper to my What's …

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a …

Functional Explanation And Metaphysical Individualism, Justin Schwartz

Justin Schwartz

A number of (present or former) analytical Marxists, such as Jon Elster, have argued that functional explanation has almost no place in the social sciences. (Although the discussion is framed in terms of a debate among analytical Marxists, the point is quite general, and Marxism is used for illustrative purposes.) Functional explanation accounts for what is to be explained by reference to its function; thus, sighted organism have eyes because eyes enable them to see. Elster and other critics of functional explanation argue that this pattern of explanation is inconsistent with "methodological individualism," the idea, as they understand it, that …