Law Commons^™

The Application Of Antitrust Law To Labor Markets -Then And Now, Richard A. Epstein

Articles

As of late, there has been a concerted push in the Biden administration, backed by prominent academics, to expand the application of antitrust law against major employers who are said to exercise monopsony power that reduces aggregate demand and thus leaves too many workers on the sidelines. The effort takes place chiefly in two major areas: stricter attacks on covenants not-to-compete, and more intense review of mergers under the Clayton Act.

This paper begins with an historical account of the law in both areas, from which it concludes that there is no good reason to alter the status quo ante. …

Freedom Denied: How The Culture Of Detention Created A Federal Jailing Crisis, University Of Chicago Law School. Federal Criminal Justice Clinic

Federal Criminal Justice Clinic

This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty. This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process. Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings. Based on our empirical courtwatching data and interviews with nearly 50 stake-holders, we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law...” Our Report aims …

The Legal Envelope Theorem, David A. Weisbach, Daniel J. Hemel

Articles

Nontax legal rules regulating the workplace, the financial sector, real property, and many other areas affect the ability of governments to collect revenues and provide public goods. Yet tax-collection considerations rarely enter into economic analyses of nontax legal rules. Usually, tax-collection concerns are shunted aside to separate studies (and separate law school courses) rather than integrated into debates in nontax spheres. This separation between nontax legal rules and tax-collection considerations bears significant negative consequences for the ability of law and economics to generate descriptively accurate and normatively attractive accounts of important nontax legal questions.

This Article takes a step toward …

Regulatory Oscillation, Jonathan S. Masur

Articles

In the wake of the Reagan deregulation, America experienced twenty- eight years of regulatory progression, with precious little retrogression. That trend came to a crashing halt during the four years of Donald Trump's presidency. As a candidate, Trump campaigned on a series of pledges to reverse and undo as much of the work done by Barack Obama as possible. The Trump EPA was particularly active in this effort. In addition to reversing the Clean Power Plan, under Trump the EPA repealed or substantially weakened a number of other important Obama-era regulations, including a substantial increase in fuel economy standards and …

The Persistent Objector Doctrine: Identifying Contradictions, Shelly Aviv Yeini

Chicago Journal of International Law

The persistent objector doctrine (POD) in international law provides that a rule of customary international law (CIL) will not oblige a state that has persistently objected to the development of the rule. The doctrine requires that the objection be “persistent” and “consistent” and that it not be contradictory. Yet, while in this context the meaning of persistency and consistency, in this context, has been discussed in the legal literature, the term “contradiction” has not. Therefore, it is not clear what type of behavior would represent a contradiction that would disqualify a state from persistent objector (PO) status. In practice, this …

Antitrust And Inequality, Eric A. Posner, Cass R. Sunstein

Articles

In its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential …

The Epistemology Of The Internet And The Regulation Of Speech In America, Brian Leiter

Articles

The Internet is the epistemological crisis of the 21st century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals, or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality …

Duplicative Taxation Among The States: A Problem Not Worth Solving?, Julie Roin

Articles

Recent legal and economic changes not to mention the rise in telecommuting caused by COVID have raised the salience of a lon-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for congressional action to eliminate or reduce this "duplicative" taxation. This Article suggests that the alleged problem may be both less of a problem, and …

Hidden Agendas In Shareholder Voting, Scott Hirst, Adriana Z. Robertson

Articles

Nothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will …

Submerged Independent Agencies, Brian D. Feinstein, Jennifer Nou

Public Law and Legal Theory Working Papers

Independent agencies are in the judicial crosshairs. Scholars criticize their efficacy—while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them “submerged independent agencies.” These entities are “agencies” because they wield discretionary …

Civil Procedure As The Regulation Of Externalities: Toward A New Theory Of Civil Litigation, Ronen Avraham, William Hubbard

Articles

No abstract provided.

The Potential Beneficial Effects Of Vaccination On Antigenically Evolving Pathogens, Frank Wen, Anup Malani, Sarah Cobey

Articles

No abstract provided.

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Fennell

Articles

No abstract provided.

Antitrust And Labor Markets: A Reply To Richard Epstein, Eric Posner

Articles

No abstract provided.

Antitrust Overreach In Labor Markets: A Response To Eric Posner, Richard Epstein

Articles

No abstract provided.

Article 2(4) And Authoritarian International Law, Tom Ginsburg

Articles

In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)?¹ The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.”² Vladimir Putin’s gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it …

Personalized Class Actions, Omri Ben-Shahar

Articles

No abstract provided.

The Expanding Universe Of Bilateral Labor Agreements, Adam Chilton, Bartosz Woda

Articles

In the seventy-five years since the end of World War II, pairs of countries have entered into over a thousand bilateral labor agreements (BLAs) to regulate the cross-border flow of workers. These agreements have received little public or academic attention. This is likely, in part, because there is limited data or easily available information on BLAs. This Article hopes to change that by introducing three new resources: (1) a dataset documenting the formation of over 1,200 BLAs; (2) a corpus including the texts of over 800 BLAs; and (3) a dataset coding whether over 500 BLAs mention twenty topics that …

Managerial Contracting: A Preliminary Study, Lisa Bernstein, Brad Peterson

Articles

Important types of contractual relationships—among them those between integrated product manufacturers and their suppliers—are neither fully transactional nor fully relational. The agreements that govern these relationships incorporate highly detailed written terms that focus not only on what is promised but also on the details of how it is to be achieved and how suppliers’ actions will be monitored and responded to over the life of the agreement. Together with the implicit relational contracts that support their operation, these provisions create an economic hybrid that lies between markets and hierarchies, a set of relatively standard institutional arrangements that give buyers the …

Toward A “Tender Offer” Market For Labor Representation, Aneil Kovval, Jonathan R. Macey

Articles

American workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But this strategy does not seem to be working for enough workers. Despite some recent renewed activity, private-sector unionization rates remain below ten percent and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article pro-poses a radical fix to the problem of declining unions. Drawing inspiration from corporate governance …

Constitutional Challenges To Public Health Orders In Federal Courts During The Covid-19 Pandemic, Kenny Mok, Eric A. Posner

Articles

We examine federal judicial cases involving nonreligious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic in early 2020 to January 27, 2022. Consistent with the tradition of judicial deference toward states during emergencies, we find a high level of success for governments. However, governments did lose in 14.2% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers who brought claims based on gun rights and property rights, while Democratic- appointed judges were more likely to rule in favor …

Democratic Backsliding And Multiracial Democracy. A Response To The 2021 Jorde Symposium Lecture By Steven Levitsky, Tom Ginsburg

Articles

We live in an anxious era, particularly about the possibility of multiethnic democracy. The polarization of American democracy in general, accelerated by Trumpism in particular, has challenged narratives of race as gradually declining in significance. Instead, conventional wisdom suggests that Trumpism results directly from rising racial resentment of a White population that fears losing its relative power.² “Dog Whistle Politics” have been discarded in favor of openly nativist appeals, including by media figures such as Tucker Carlson.³

We are not alone. In France, the theory of the Grand Remplacement (Great Replacement) has spread from the fringes to the …

What Can We Learn From The Federal Approach To The Prosecution Of Juvenile Crime?, Emily Buss

Articles

In a context of widespread concern over our bloated criminal justice system and growing awareness of the harm done to individuals and society by our excessive incarceration policies, any piece of the system that has remained infinitesimally small deserves some attention. In her article, The Federal Juvenile System, 1 Esther Hong highlights the success of the largely overlooked federal juvenile delinquency system in staying extremely small and suggests this system offers lessons for its bloated state and federal counterparts. Although I agree that the federal government’s prosecution of minors under the Federal Juvenile Delinquency Act (“FJDA”) offers some valuable lessons …

Police Agencies On Facebook Overreport On Black Suspects, Ben Grunwald, Julian Nyarko, John Rappaport

Articles

A large and growing share of the American public turns to Facebook for news. On this platform, reports about crime increasingly come directly from law enforcement agencies, raising questions about content curation. We gathered all posts from almost 14,000 Facebook pages maintained by US law enforcement agencies, focusing on reporting about crime and race. We found that Facebook users are exposed to posts that overrepresent Black suspects by 25 percentage points relative to local arrest rates. This overexposure occurs across crime types and geographic regions and increases with the proportion of both Republican voters and non-Black residents. Widespread exposure to …

In Tribute: Justice Stephen G. Breyer, Jennifer Nou

Articles

No abstract provided.

Promoting Regulatory Prediction, Jonathan Masur, Jonathan Remy Nash

Articles

It is essential for environmental protection that private actors be able to anticipate government regulation. If for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

Ideation And Innovation In Constitutional Rights, Tom Ginsburg

Articles

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion …

Reflections Of A Supreme Court Commissioner, William Baude

Articles

In 2021, President Joseph Biden convened a presidential commission to consider proposals to reform the Supreme Court. Dozens of witnesses dressed up to provide live testimony to the commission, thousands of people wrote in with additional testimony, and the commission ultimately sent the President a 294-page report.1 I served on that commission and agreed to submit our report to the President. But much is lost in committee. What follows are my own views on the subjects we considered.

In keeping with the structure of the commission’s report, Part I addresses background, Part II addresses court packing, Part III addresses term …

Streaming Property, Lee Anne Fennell

Articles

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

Grid Reliability Through Clean Energy, Alexandra Klass, Joshua Macey, Shelley Welton, Hannah Wiseman

Articles

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.

This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. …