Law Commons^™

Assessment Of Consumer Protection Act 2019 To Support Tobacco Control In India, Ashok R. Patil

Articles

The use of tobacco products has been clearly established to cause significant medical and economic harm. While specific tobacco control legislation has been enacted in the form of the COTPA 2003, it is important to examine if other legislations can be utilised for regulation of tobacco consumption. One such legislation is the Consumer Protection Act 2019, which significantly expands the rights of consumers and protection given to them in terms of product safety and product quality. Accordingly, this paper provides an in-depth analysis of the Consumer Protection Act 2019 and the scope of utilising this legislation and the jurisprudence on …

Institutional Considerations For The Regulation Of Internet Service Providers, Daniel Deacon

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Written to commemorate the twenty-fifth anniversary of the Telecommunications Act of 1996, this Essay looks forward at possible settlements regarding the nagging question of whether and how best to regulate Internet service providers. Rather than start from the standpoint that this or that policy, such as net neutrality, is good or bad, I ask more broadly who should regulate ISPs and under what general framework. I assess and critique various frameworks, including reliance on markets and antitrust; state-level regulation under a federal Title I regime; various frameworks set forward in Republican sponsored bills; and the Save the Internet Act. I …

Contracts In The Age Of Smart Readers, Yonathan A. Arbel, Shmuel I. Becher

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What does it mean to have machines that can read, explain, and evaluate contracts? Recent advances in machine learning have led to a fundamental breakthrough in machine language models, portending a profound shift in the ability of machines to process text. Such a shift has far-reaching consequences for diverse areas of law, which are predicated on, and justified by, the existence of information barriers. Our object here is to provide a general framework for evaluating the legal and policy implications of employing language models as "smart readers"-tools that read, analyze, and assess contracts, disclosures, and privacy policies.

Synthesizing state-of-the-art developments, …

The Meld Model: The Holy Grail Of Indian Corporate Jurisprudence, Rahul Singh

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Is a model of a theory of Indian corporate jurisprudence effable? This paper posits that jurisprudence of Indian corporate law is desirable and possible. Given the relative nascence of the Companies Act 2013, Insolvency and Bankruptcy Code 2016 and the Competition Act 2002, this paper undergirds the possibility of jurisprudence through modelling-the meld model-which is, jurisprudentially speaking, a synthesis between 'exclusive legal positivism' and 'law and economics'. The paper instantiates the utility and desirability of the meld model through test suites - i.e. select case laws in the context of company, competition and insolvency laws. With the help of test …

The Privacy Paradox By Proxy: Considering Predictors Of Sharenting, Niamh Ní Bhroin, Thuy Dinh, Kira Thiel, Elisabeth Staksrud, Kjartan Ólafsson

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Despite being worried that children may compromise their privacy by disclosing too much personal data online, many parents paradoxically share pictures and information about their children themselves, a practice called sharenting. In this article we utilise data from the EU Kids Online survey to investigate this paradox. We examine both how individual charac‐ teristics such as demographics and digital skills, and relational factors, including parental mediation styles, concerns about children’s privacy, and communication between parents and children influence sharenting practices. Counter‐intuitively, our findings show that parents with higher levels of digital skills are more likely to engage in sharenting. Furthermore, …

Beyond Section 230 Liability For Facebook, Nancy S. Kim

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No abstract provided.

Adhesive Terms And Reasonable Notice, Nancy S. Kim

Articles

This Article challenges the conceptualization of adhesive forms as contracts and introduces a taxonomy of adhesive terms. It argues that this classification system should be used to determine which adhesive terms are in fact contractual rather than depending upon the self-serving “contracts” label that businesses use to identify their terms. Even if contract law is not the proper framework, torts, property, and other legal and regulatory regimes may determine the enforceability and effect of adhesive terms.

Thus, this Article is both a deconstruction of standard form contracts and a reconstruction. Courts typically apply the standard of reasonable notice to assess …

The Right To Jury Trial In Idaho Civil Cases: Origins, Purpose, And Selected Applications, John E. Rumel

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No abstract provided.

Inheriting Citizenship, Scott Titshaw

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Most of us become citizens at birth based either on our birthplace or our parents' citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and …

A Cure Of What Ails You: How Universal Healthcare Can Help Fix Our Tort System, David Pimentel

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No abstract provided.

Assessing Affirmative Action's Diversity Rationale, Adam Chilton, Justin Driver, Jonathan Masur, Kyle Rozema

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No abstract provided.

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

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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. …

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 …

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

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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

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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

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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 …

The Sec's Fight To Stop District Courts From Declaring Its Hearings Unconstiutional, Linda Jellum

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Can the Securities and Exchange Commission (SEC) unilaterally deny a United States citizen the right to challenge the constitutionality of the agency's administrative hearings in district court? The SEC thinks so, but it makes no sense for these constitutional challenges to be brought in the very proceeding that allegedly, and likely, violates the U.S. Constitution. The appellate courts mostly agreed with the SEC, until recently when the Fifth Circuit held that the district courts should hear these claims. Given this circuit split, this issue will soon reach the Supreme Court, making this Article extremely timely. The Securities Exchange Act of …

Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson

Articles

Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes.

In 2020, the Environmental Protection Network, …

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

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An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

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

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No abstract provided.

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

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No abstract provided.

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

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No abstract provided.

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

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No abstract provided.

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

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No abstract provided.

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

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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

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No abstract provided.

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

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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

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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 …