Law Commons^™

Bitcoin And The Uniform Commercial Code, Jeanne L. Schroeder

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Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that …

Can John Coffee Rescue The Private Attorney General? Lessons From The Credit Card Wars, Myriam E. Gilles

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Partisans on one side of the class action debates argue that the class device is a critical enforcement tool that increases much-needed access to justice. Combatants on the other side scoff that class actions are tools for shaking down corporations for settlement payments and attorneys’ fees in unmeritorious cases. In his most recent book, Entrepreneurial Litigation: Its Rise, Fall and Future, John C. Coffee puts both sides in their place, providing an account that, he aptly tells us, “has long been missing in the literature, in large part because academics writing in this area either have been so ideologically committed …

Plural Marriage, Group Marriage And Immutability In Obergefell V. Hodges And Beyond, Edward D. Stein

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For decades, opponents of marriage for same-sex couples have appealed to polygamy. The Chief Justice's dissent in Obergefell is no exception insofar as he says that the logic of the majority opinion with respect to same-sex marriage also applies to plural marriage. This Essay explores the resources for distinguishing polygamy from same-sex marriage, focusing on the mutability or immutability of the desire to engage in plural/group marriage as compared to the desires to marry someone of the same sex. It shows the appeal to immutability does not succeed in distinguishing plural/group marriages from same-sex marriages.

The Politics Of Comparative Constitutional Inquiry: At The Crossroads Of Law, Political Science, And Ideology, Michel Rosenfeld

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No abstract provided.

Antitrust And Wealth Inequality, Daniel Crane

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In recent years, progressive public intellectuals and prominent scholars have asserted that monopoly power lies at the root of wealth inequality and that increases in antitrust enforcement are necessary to stem its rising tide. This claim is misguided. Exercises of market power have complex, crosscutting effects that undermine the generality of the monopoly regressivity claim. Contrary to what the regressivity critics assume, wealthy shareholders and senior corporate executives do not capture the preponderance of monopoly rents. Such profits are broadly shared within and dissipated outside the firm. Further, many of the subjects of antitrust law are middle-class professionals, sole proprietors, …

Understanding Noncompetition Agreements: The 2014 Noncompete Survey Project, J. J. Prescott, Norman D. Bishara, Evan Starr

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In recent years, scholars and policymakers have devoted considerable attention to the potential consequences of employment noncompetition agreements and to whether legislatures ought to reform the laws that govern the enforcement of these controversial contractual provisions. Unfortunately, much of this interest—and the content of proposed reforms—derives from anecdotal tales of burdensome noncompetes among low-wage workers and from scholarship that is either limited to slivers of the population (across all studies, less than 1%) or relies on strong assumptions about the incidence of noncompetition agreements. Better understanding of the use of noncompetes and effective noncompetition law reform requires a more complete …

Contemporary Practice Of The United States Relating To International Law, April 2016, Kristina Daugirdas, Julian Davis Mortenson

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In this section: • United States Achieves Progress in Iran Relations with Nuclear Agreement Implementation, Prisoner Swap, and Hague Claims Tribunal Resolutions • European Union and United States Conclude Agreement to Regulate Transatlantic Personal Data Transfers • After Lengthy Delay, Congress Approves IMF Governance Reforms that Empower Emerging Market and Developing Countries • United States Joins Consensus on Paris Climate Agreement • United States and Eleven Other Nations Conclude Trans-Pacific Partnership

Big Data, Patents, And The Future Of Medicine, W. Nicholson Price Ii

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Big data has tremendous potential to improve health care. Unfortunately, intellectual property law isn’t ready to support that leap. In the next wave of data- driven medicine, black-box medicine, researchers use sophisticated algorithms to examine huge troves of health data, finding complex, implicit relationships and making individualized assessments for patients. Black-box medicine offers potentially immense benefits, but also requires substantial high investment. Firms must develop new datasets, models, and validations, which are all nonrivalrous information goods with significant spillovers, requiring incentives for welfare-optimizing investment. Current intellectual property law fails to provide adequate incentives for black- box medicine. The Supreme Court …

Justice Kennedy And The Fisher Revisit: Will The Irrelevant Prove Decisive?, Richard O. Lempert

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Most Court watchers expect Justice Kennedy to cast the deciding vote when the Supreme Court hands down its decision in this term’s installment of Fisher v. University of Texas at Austin or, as it is colloquially titled, Fisher II. What divides observers is not whose vote will be crucial, but the law that vote will make. At one extreme, Justice Kennedy could vote to uphold the Fifth Circuit’s reaffirmation of its earlier decision. When the case was heard, this would almost certainly have meant affirming the circuit court’s decision by an equally divided Court. (Justice Kagan, an almost certain supporter …

The Enigma Of Wynne, Edward A. Zelinsky

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The five-justice Wynne majority used that case to make a major statement about the dormant Commerce Clause. In many respects, Wynne is an enigma that perpetuates an inherent problem of the Courts dormant Commerce Clause doctrine: the Court declares some ill-defined taxes as unconstitutionally discriminatory because they encourage in-state investment, while other economically equivalent taxes and government programs that similarly encourage intrastate economic activity are apparently acceptable under the dormant Commerce Clause.

Wynne is thus more important than the immediate situation it addresses, and will have consequences beyond the immediate circumstances it addresses. A decision as enigmatic as it is …

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

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Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …

The Role Of The Popes In The Invention Of Complementarity And The Vatican's Anathematization Of Gender, Mary Anne Case

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No abstract provided.

Missing Sex Talk In The Supreme Court's Same-Sex Marriage Cases, Mary Anne Case

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Returning To Common-Law Principles Of Insider Trading After United States V. Newman, Richard A. Epstein

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How The Fourth Amendment And The Separation Of Powers Rise (And Fall) Together, Aziz Huq

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No abstract provided.

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin Feldman, Mark Lemley, Jonathan Masur, Arti K. Rai

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No abstract provided.

Friedrichs: An Unexpected Tool For Labor, Heather Whitney

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The Management Of Staff By Federal Court Of Appeal Judges, G. Mitu Gulati, Richard A. Posner

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No abstract provided.

The Perverse Effects Of Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue

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Cyberwar, International Politics, And Institutional Design, Daniel Abebe

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The Mutual Dependency Of Force And Law In American Foreign Policy, Richard A. Epstein, Mario Loyola

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A Comity Of Errors: The Rise, Fall, And Return Of International Comity In Transnational Discovery, Diego Zambrano

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No abstract provided.

A Liberal Dilemma: Respecting Autonomy While Also Protecting Inchoate Children From Prenatal Substance Abuse., Andrew J. Weisberg, Frank E. Vandervort

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Substance abuse is a significant social problem in America. It is estimated that some eighteen million Americans have an alcohol abuse problem and that almost five million have a drug abuse problem. According to the National Institute on Drug Abuse, substance abuse costs some $700 billion per year Substance abuse is a major contributor to child maltreatment. It is estimated that between one- and two-thirds of cases in which children enter foster care are linked to parental substance abuse. Unfortunately, this may be an underestimate as recent research suggests that many cases, particularly cases in which children have been exposed …

Economic Crisis And The Integration Of Law And Finance: The Impact Of Volatility Spikes, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

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The 2008 financial crisis raised puzzles important for understanding how the capital market prices common stocks and in turn, for the intersection between law and finance. During the crisis, there was a dramatic five-fold spike, across all industries, in “idiosyncratic risk”—the volatility of individual-firm share prices after adjustment for movements in the market as a whole.

This phenomenon is not limited to the most recent financial crisis. This Article uses an empirical review to show that a dramatic spike in idiosyncratic risk has occurred with every major downturn from the 1920s through the recent financial crisis. It canvasses three possible …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

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The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

Sec Investigations And Securities Class Actions: An Empirical Comparison, Stephen J. Choi, Adam C. Pritchard

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Using actions with both an SEC investigation and a class action as our baseline, we compare the targeting of SEC-only investigations with class-action-only lawsuits. Looking at measures of information asymmetry, we find that investors in the market perceive greater information asymmetry following the public announcement of the underlying violation for class-action-only lawsuits compared with SEC-only investigations. Turning to sanctions, we find that the incidence of top officer resignation is greater for class-action-only lawsuits relative to SEC-only investigations. Our findings are consistent with the private enforcement targeting disclosure violations at least as precisely as (if not more so than) SEC enforcement.

Manufacturing Barriers To Biologics Competition And Innovation, W. Nicholson Price Ii., Arti K. Rai

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As finding breakthrough small-molecule drugs becomes more difficult, drug companies are increasingly turning to "large molecule" biologics. Although biologics represent many of the most promising new therapies for previously intractable diseases, they are extremely expensive. Moreover, the pathway for generic-type competition set up by Congress in 2010 is unlikely to yield significant cost savings. This Article provides a fresh diagnosis of and prescription for this major public policy problem. It argues that the key cause is pervasive trade secrecy in the complex area of biologics manufacturing. Under the current regime, this trade secrecy, combined with certain features of Food and …

Trade Credit And Taxes, Mihir A. Desai, C. Fritz Foley, James R. Hines Jr.

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This paper analyzes the extent to which tax differences affect the use of trade credit. U.S.-owned affiliates in low-tax countries use trade credit to lend, whereas those in high-tax countries use trade credit to borrow: 10% lower local tax rates are associated with net trade credit positions that are 1.4% higher as a fraction of sales. The use of trade credit to get capital out of low-tax, low-return environments is also illustrated by the temporary repatriation tax holiday in 2005, which was used most intensively by affiliates with positive net trade credit positions.

Solving The Moro Problem: Legalizing The Bangsamoro Peace Process, Gene Carolan

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The purpose of this paper is to highlight the structural features that are proving central to the stability of the 2014 Comprehensive Agreement on the Bangsamoro between the Government of the Philippines and the Moro Islamic Liberation Front, and those features that were detrimental to its predecessors.

This paper finds that a more highly legalized approach to peace-making has resulted in greater agreement stability in the Philippines. More precise in detail and inclusive in scope, the legal nature of the 2014 Comprehensive Agreement has made it more responsive to the root causes of the conflict, and resilient to incidents that …

Monitoring Hiv And Aids Related Policy Reforms: A Road Map To Strengthen Policy Monitoring And Implementation In Pepfar Partner Countries, Jeffrey Lane, Andre Verani, Mai Hijazi, Erin Hurley, Amy Hagopian, Nicole Judice, Ron Macinnis, Sallie Sanford, Sarah Zelek, Aaron Katz

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Achieving an AIDS-free generation will require the adoption and implementation of critical health policy reforms. However, countries with high HIV burden often have low policy development, advocacy, and monitoring capacity. This lack of capacity may be a significant barrier to achieving the AIDS-free generation goals. This manuscript describes the increased focus on policy development and implementation by the United States President’s Emergency Plan for AIDS Relief (PEPFAR). It evaluates the curriculum and learning modalities used for two regional policy capacity building workshops organized around the PEPFAR Partnership Framework agreements and the Road Map for Monitoring and Implementing Policy Reforms. …