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Articles 1 - 30 of 30
Full-Text Articles in Law
What It Takes To Write Statutes That Hold The Firearms Industry Accountable To Civil Justice, Heidi Li Feldman
What It Takes To Write Statutes That Hold The Firearms Industry Accountable To Civil Justice, Heidi Li Feldman
Georgetown Law Faculty Publications and Other Works
This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.
The Tax Treatment Of Student Loan Discharge And Cancellation, John R. Brooks
The Tax Treatment Of Student Loan Discharge And Cancellation, John R. Brooks
Georgetown Law Faculty Publications and Other Works
The standard view is that, absent an express exclusion in the tax code, cancellation of student debt is taxable. Under this view, any immediate debt relief through administrative action would generate a tax bill. More troubling, the millions of borrowers in Income-Driven Repayment could face a “tax bomb” because of their promised loan cancellation, potentially hitting borrowers with bills for $100,000 or more in the same year that the government tells them their loan obligations have ended. These perverse outcomes are, however, based on a misreading of the tax law. The standard tax treatment of debt cancellation does not work …
Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley
Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley
Georgetown Law Faculty Publications and Other Works
We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016).
False Advertising Law And New Private Law, Gregory Klass
False Advertising Law And New Private Law, Gregory Klass
Georgetown Law Faculty Publications and Other Works
This chapter, which will appear in the Oxford Handbook of New Private Law, examines the extent to which US false advertising law can be viewed as part of the private law. Its working hypothesis is that that although it can be helpful to distinguish private from public law, there is not a sharp border between the two regions. Laws that fall on the private side of the divide can be designed in light of purposes and principles commonly associated with public law, and vice versa. False advertising law provides an example. Despite the fact that it is commonly classified as …
One-Legged Contracting, Ian Ayres, Gregory Klass
One-Legged Contracting, Ian Ayres, Gregory Klass
Georgetown Law Faculty Publications and Other Works
This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a …
Why The Latest Ruling In The Sandy Hook Shooting Litigation Matters, Heidi Li Feldman
Why The Latest Ruling In The Sandy Hook Shooting Litigation Matters, Heidi Li Feldman
Georgetown Law Faculty Publications and Other Works
On March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor,and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems …
Boilerplate And Party Intent, Gregory Klass
Boilerplate And Party Intent, Gregory Klass
Georgetown Law Faculty Publications and Other Works
It is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article discusses that phenomenon. It identifies decisions in which courts favor boilerplate terms over other evidence the parties’ intent because it is boilerplate, discusses the rules that explain those outcomes, and examines the reasons behind the rules.
A contractual writing, whether individually negotiated and drafted or boilerplate, …
Revising The Vertical Merger Guidelines (Ftc Hearings), Steven C. Salop
Revising The Vertical Merger Guidelines (Ftc Hearings), Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This slide deck was the author’s presentation at the FTC Hearings on Vertical Mergers (November 1, 2018). The deck sets out a summary of the author’s economic analysis and proposed revisions to the U.S. Vertical Merger Guidelines.
Rethinking Children's Advertising Policies For The Digital Age, Angela J. Campbell
Rethinking Children's Advertising Policies For The Digital Age, Angela J. Campbell
Georgetown Law Faculty Publications and Other Works
This article describes major changes in how video content and advertising is delivered to consumers. Digital technologies such as broadband allow consumers to stream or download programming. Smart phones and tablets allow consumers to view screen content virtually anywhere at any time. Advertising has become personalized and integrated with other content.
Despite these major changes in the media markets, the framework for regulating advertising to children has not changed very much since the 1990s. This article argues that the existing regulatory framework must be reinvented to protect children in the digital age. It uses Google’s recently introduced YouTube Kids app …
The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, And The Flawed Incremental Price-Cost Test, Steven C. Salop
The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, And The Flawed Incremental Price-Cost Test, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
There are two overarching legal paradigms for analyzing exclusionary conduct in antitrust – predatory pricing and the raising rivals’ costs characterization of foreclosure. Sometimes the choice of paradigm is obvious. Other times, it may depend on the structure of the plaintiff’s allegations. Some types of conduct, notably conditional pricing practices (CPPs), might appear by analogy to fit into both paradigms. CPPs involve pricing that is conditioned on exclusivity or some other type of favoritism in a customer’s purchases or input supplier’s sales. The predatory pricing paradigm would attack the low prices of CPPs. By contrast, the RRC foreclosure paradigm would …
Revising The U.S. Vertical Merger Guidelines: Policy Issues And An Interim Guide For Practitioners, Steven C. Salop, Daniel P. Culley
Revising The U.S. Vertical Merger Guidelines: Policy Issues And An Interim Guide For Practitioners, Steven C. Salop, Daniel P. Culley
Georgetown Law Faculty Publications and Other Works
Mergers and acquisitions are a major component of antitrust law and practice. The U.S. antitrust agencies spend a majority of their time on merger enforcement. The focus of most merger review at the agencies involves horizontal mergers, that is, mergers among firms that compete at the same level of production or distribution.
Vertical mergers combine firms at different levels of production or distribution. In the simplest case, a vertical merger joins together a firm that produces an input (and competes in an input market) with a firm that uses that input to produce output (and competes in an output market). …
High Technology, Consumer Privacy, And U.S. National Security, Laura K. Donohue
High Technology, Consumer Privacy, And U.S. National Security, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
Documents released over the past year detailing the National Security Agency’s (“NSA”) telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. corporations, the economy, and U.S. national security.
The first Snowden documents, printed on June 5, 2013, revealed that the government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had …
Potential Competitive Effects Of Vertical Mergers: A How-To Guide For Practitioners, Steven C. Salop, Daniel P. Culley
Potential Competitive Effects Of Vertical Mergers: A How-To Guide For Practitioners, Steven C. Salop, Daniel P. Culley
Georgetown Law Faculty Publications and Other Works
The purpose of this short article is to aid practitioners in analyzing the competitive effects of vertical and complementary product mergers. It is also intended to assist the agencies if and when they undertake revision of the 1984 U.S. Vertical Merger Guidelines. Those Guidelines are out of date and do not reflect current enforcement or economic thinking about the potential competitive effects of vertical mergers. Nor do they provide the tools needed to carry out a modern competitive effects analysis. This article is intended to partially fill the gap by summarizing the various potential competitive harms and benefits that can …
The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming
The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming
Georgetown Law Faculty Publications and Other Works
What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. …
Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King
Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King
Georgetown Law Faculty Publications and Other Works
The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.
Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by …
The Electronic Silk Road: How The Web Binds The World In Commerce, Anupam Chander
The Electronic Silk Road: How The Web Binds The World In Commerce, Anupam Chander
Georgetown Law Faculty Publications and Other Works
On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?
In this accessible book, cyber-law expert Anupam Chander provides the first thorough …
The Protected Profits Benchmark: Responses To Comments, Steven C. Salop
The Protected Profits Benchmark: Responses To Comments, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
In my earlier article, I proposed the “Protected Profits Benchmark” (PPB) price standard for determining whether or not a vertically integrated monopolist is engaged in a refusal to deal or price squeeze in violation of Section 2 of the Sherman Act. The PPB would be used where market benchmarks do not exist or do not apply. Violating the PPB price involves profit-sacrifice, which suggests anticompetitive animus. When products are homogeneous, a wholesale price that violates this price standard would exclude an equally efficient entrant. As a result, there will be less competition in the downstream (output) market in which the …
Meaning, Purpose, And Cause In The Law Of Deception, Gregory Klass
Meaning, Purpose, And Cause In The Law Of Deception, Gregory Klass
Georgetown Law Faculty Publications and Other Works
Laws designed to affect the flow of information take many forms: rules against misrepresentation, disclosure requirements, secrecy requirements, rules governing the formatting or packaging of information, and interpretive rules designed to give people new reasons to share information. Together these and similar rules constitute the law of deception: laws that aim to prevent or cure deception. One encounters similar problems of design, function and justification throughout the law of deception. Yet very little has been written about the category as a whole. This article begins to sketch a general theory. It identifies three regulatory approaches. Interpretive laws, such as common …
The Fda, Preemption, And Public Safety: Antiregulatory Effects And Maddening Inconsistency, Lawrence O. Gostin
The Fda, Preemption, And Public Safety: Antiregulatory Effects And Maddening Inconsistency, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
Most people think of preemption as a technical constitutional doctrine, but it is pivotally important to health and safety, while also opening the door to broad judicial discretion. The Rehnquist and Roberts Courts’ pro-business/pro-preemption jurisprudence is distinctly antiregulatory, invalidating major state public health rules, such as in occupational safety, tobacco control, and motor vehicle safety. Apart from the antiregulatory effects, there is maddening inconsistency. Consider three relatively recent Supreme Court cases. In Riegel v. Medtronic, Inc. (2008), the Court held that federal law bars injured consumers from challenging the safety or effectiveness of FDA-approved medical devices. A year later, …
Financial Stability Is A Volume Business: A Comment On The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Anna Gelpern
Financial Stability Is A Volume Business: A Comment On The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Anna Gelpern
Georgetown Law Faculty Publications and Other Works
Professor Melissa B. Jacoby's essay pays homage to Stewart Macaulay's classic study of the Magnuson-Moss Warranty Act, a U.S. federal consumer protection law that, according to Macaulay, was virtually unknown to the lawyers whose clients needed it the most. The moral of Macaulay's study is that even good consumer protection laws on the books often fail to deliver in action for complex cultural, institutional, and economic reasons. Yet reducing Professor Jacoby's essay to this very important moral undersells its contribution. A fragmented infrastructure for legal service delivery of the sort she describes does not merely fail consumers more often than …
Unfair Competition And Uncommon Sense, Rebecca Tushnet
Unfair Competition And Uncommon Sense, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But …
Is Local Consumer Protection Law A Better Retributive Mechanism Than The Tax System, Brian Galle
Is Local Consumer Protection Law A Better Retributive Mechanism Than The Tax System, Brian Galle
Georgetown Law Faculty Publications and Other Works
As Judge Calabresi has argued, preemption decisions are, at their core, a choice about which tier of government should have policy-making authority. In prior work, Mark Seidenfeld and I argued that the choice of whether or not to preempt state law decisions should be based explicitly on "fiscal federalism" considerations. The economic discipline of fiscal federalism attempts to measure the welfare effects of situating a given policy either locally, nationally, or somewhere in between.
Fighting Freestyle: The First Amendment, Fairness, And Corporate Reputation, Rebecca Tushnet
Fighting Freestyle: The First Amendment, Fairness, And Corporate Reputation, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
There are three distinct groups who might want to engage in speech about commercial entities or to constrain those commercial entities from making particular claims of their own. Competitors may sue each other for false advertising, consumers may sue businesses, and government regulators may impose requirements on what businesses must and may not say. In this context, this Article will evaluate a facially persuasive but ultimately misguided claim about corporate speech: that because consumers regularly get to say nasty things about corporations under the lax standards governing defamation of public figures, corporations must be free to make factual claims subject …
Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet
Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to …
It Depends On What The Meaning Of "False" Is: Falsity And Misleadingness In Commercial Speech Doctrine, Rebecca Tushnet
It Depends On What The Meaning Of "False" Is: Falsity And Misleadingness In Commercial Speech Doctrine, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, non-misleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First …
Privacy, Ideology, And Technology: A Response To Jeffrey Rosen, Julie E. Cohen
Privacy, Ideology, And Technology: A Response To Jeffrey Rosen, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
This essay reviews Jeffrey Rosen’s The Unwanted Gaze: The Destruction of Privacy in America (2000).
Rosen offers a compelling (and often hair-raising) account of the pervasive dissolution of the boundary between public and private information. This dissolution is both legal and social; neither the law nor any other social institution seems to recognize many limits on the sorts of information that can be subjected to public scrutiny. The book also provides a rich, evocative characterization of the dignitary harms caused by privacy invasion. Rosen’s description of the sheer unfairness of being “judged out of context” rings instantly true. Privacy, Rosen …
Liability For Unreasonably And Unavoidably Unsafe Products: Does Negligence Doctrine Have A Role To Play, Joseph A. Page
Liability For Unreasonably And Unavoidably Unsafe Products: Does Negligence Doctrine Have A Role To Play, Joseph A. Page
Georgetown Law Faculty Publications and Other Works
To what extent, if any, should courts hold defendants liable for harm caused by hazards associated with the unduly and unavoidably dangerous aspects of goods they produce and market?
Where manufacturers might have eliminated unreasonable risks arising from the manufacture or design of a product, or from the information (or lack thereof) conveyed by a product's labeling, the tort system traditionally has provided injured victims with an opportunity to obtain compensation for injuries attributable to these risks. Moreover, even where risks from manufacturing or construction defects could not have been eliminated with the exercise of reasonable care, the courts have …
Representing The Unrepresented In Class Action Settlements, Brian Wolfman
Representing The Unrepresented In Class Action Settlements, Brian Wolfman
Georgetown Law Faculty Publications and Other Works
Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this article, Messrs. Wolfman and Morrison argue that in "settlement class actions" the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, …
Consumer Involvement And The Consumer Product Safety Act, Joseph A. Page
Consumer Involvement And The Consumer Product Safety Act, Joseph A. Page
Georgetown Law Faculty Publications and Other Works
The notion that consumers should actively participate in the administration and enforcement of a federal statute designed to protect them from unreasonable risks of harm is a distinguishing feature of the Consumer Product Safety Act (CPSA). History suggests that when Congress entrusts to a federal agency authority to intrude into the market place on behalf of the general public (or a segment thereof), in a matter of time the agency becomes overly responsive to, or even captive of, the corporate interests subject to regulation. The absence of public-interest pressures- a very raison d'etre for the setting up of the regulatory …
Bleak House 1968: A Report On Consumer Test Litigation, Philip G. Schrag
Bleak House 1968: A Report On Consumer Test Litigation, Philip G. Schrag
Georgetown Law Faculty Publications and Other Works
The author presents the practical problems of consumer test-case litigation. Writing in an informal, anecdotal style, he addresses himself to law students, telling them of the many obstacles they will face in this type of practice. The author relates the innumerable and exasperating delaying tactics employed by his adversaries in several cases now being litigated. Looking beyond the theoretical efficacy of test-case litigation as a solution to the morass of consumers' grievances, the author's experiences suggest the need for basic reform of state procedure in order to permit more speedy resolution of the issues raised by such litigation.