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The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, Keith N. Hylton, David S. Evans Nov 2008

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, Keith N. Hylton, David S. Evans

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …


Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - Lecture Transcript - 10-31-2008, Wendy J. Gordon Oct 2008

Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - Lecture Transcript - 10-31-2008, Wendy J. Gordon

Scholarship Chronologically

I also thank this morning's panelists. What I'm going to do is, first, say a little bit of an overview about what brings us all together and then talk about a particular project that many of you already have heard about, but it is something that has bothered me ever since I entered the field. It is the problem of harmless use, or what you might call a beneficial spillover that causes no loss to the person who is causally responsible for it, either in whole or in part.


Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon Oct 2008

Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon

Scholarship Chronologically

One of the things that unifies many of the scholars in IP generally, and in this room in particular, is an interest in what you might call noncommercial models cooperative sharing, peer-to-peer creativity-a yearning for a different kind of life, perhaps, one that's less commercial, more focused on dialogues, both democratic and personal, and a mode of life that emphasizes the process and product of work rather than its monetary payoff. We all know from the work of Teresa Amabile and Alfie Cohen and our own experience that if you are keeping your eye on a monetary goal or getting …


Mortgage Justice Is Blind, John D. Geanakoplos, Susan P. Koniak Oct 2008

Mortgage Justice Is Blind, John D. Geanakoplos, Susan P. Koniak

Shorter Faculty Works

THE current American economic crisis, which began with a housing collapse that had devastating consequences for our financial system, now threatens the global economy. But while we are rushing around trying to pick up all the other falling dominos, the housing crisis continues, and must be addressed.


Electronic Tax Fraud - Are There 'Sales Zappers' In Japan?, Richard Thompson Ainsworth Oct 2008

Electronic Tax Fraud - Are There 'Sales Zappers' In Japan?, Richard Thompson Ainsworth

Faculty Scholarship

Although there is no public acknowledgement - in the press, in a court case, though any announcement by the Japanese National Tax Administration, or in any academic studies or papers - that Zappers and Phantom-ware are a fraud problem in Japan, a number of factors suggest that Japan may be very fertile ground for technology-assisted cash skimming fraud. Those factors include: (1) a high concentration of small to medium sized businesses; (2) the fact that the retail economy is highly cash-based; and (3) the high level of technology acceptance in the Japanese retail sector - electronic cash registers (ECRs) and …


Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon Oct 2008

Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon

Scholarship Chronologically

My inquiry is into whether harmless uses of property should give the property owner a right to sue. Under current law, harmless trespasses to land and to copyrights and patents do indeed give rise to liability. Should they? Neither moral philosophy, political science nor economics deals well with the harmless free-rider. The possibility I'm exploring-- just exploring at this stage-- is the following: that where inexhaustible products like information become a primary source of value, our institutions might serve us better if instead of mandating payment for harmless use via legal compulsion, payment for harmless use be left to the …


How Should The Financial Markets Be Regulated?, Tamar Frankel Oct 2008

How Should The Financial Markets Be Regulated?, Tamar Frankel

Faculty Scholarship

The financial markets should be regulated mostly by examinations, not by prosecution. And examinations should be far more intense when prices rise, not after a crash.


The Supreme Common Law Court Of The United States, Jack M. Beermann Oct 2008

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …


The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas Oct 2008

The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas

Faculty Scholarship

Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …


Unilateral Refusals To Deal And The Antitrust Modernization Commission Report, Keith N. Hylton Oct 2008

Unilateral Refusals To Deal And The Antitrust Modernization Commission Report, Keith N. Hylton

Faculty Scholarship

The Antitrust Modernization Commission recommends that refusals to deal with rivals in the same market should rarely, if ever, be unlawful. I will focus on the principles that should determine the legal standard governing unilateral refusals to deal. A legal test that is strongly biased in favor of defendants, as the Commission recommends, is desirable as a default rule and especially in cases in which the essential facility at the core of the refusal to deal dispute is efficiency enhancing. However, there is another set of cases in which the defendant gains control of an essential market portal. In these …


Cracking The Egg: Which Came First—Stigma Or Affirmative Action?, Angela Onwuachi-Willig, Emily Houh, Mary Campbell Oct 2008

Cracking The Egg: Which Came First—Stigma Or Affirmative Action?, Angela Onwuachi-Willig, Emily Houh, Mary Campbell

Faculty Scholarship

This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time. Specifically, this Article examines and presents survey findings of 1) minimal, …


Zappers And Phantom-Ware At The Fta: Are They Listening Now?, Richard Thompson Ainsworth Jul 2008

Zappers And Phantom-Ware At The Fta: Are They Listening Now?, Richard Thompson Ainsworth

Faculty Scholarship

When the Federation of Tax Administrators (FTA) held a national Compliance and Education Workshop in Louisville, Kentucky (February 25-27, 2001) one of the invited speakers was Kevin Pratt, Manager, Underground Economy, Canadian Customs and Revenue Authority (CCRA). He spoke on Zappers.

To the best of anyone's present recollection, this was the first time zappers had been discussed with a large group of state-level US tax compliance professionals. However, most of the information that the CCRA presented to the FTA in 2001 was not its own - it was derivative. Zapper investigations were not an in-house specialty of the CCRA (although …


The Odyssey Of Cass Sunstein, James E. Fleming Jul 2008

The Odyssey Of Cass Sunstein, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium honoring and criticizing the scholarship of Cass Sunstein. Let me begin by stating something so obvious that we typically don't say it: Cass is the most remarkably thoughtful, constructive, and productive scholar of his (and my) generation, the generation of scholars born around the time that Brown v. Board of Education1 was decided. No one has addressed a wider range of important subjects or made a more substantial contribution to our understanding of law. I have been fruitfully engaging with his scholarship from my first article 2 to my two recent books.3 …


Rewriting Brown, Resurrecting Plessy, James E. Fleming Jul 2008

Rewriting Brown, Resurrecting Plessy, James E. Fleming

Faculty Scholarship

It is an honor and a pleasure to ponder Cooper v. AaronI and the legacy of Brown v. Board of Education2 in general and to respond to David A. Strauss's wise and insightful Childress Lecture3 in particular. I want to address three topics. The first two are encapsulated in my title: Rewriting Brown, Resurrecting Plessy. I'll examine the widespread phenomenon of "rewriting Brown." And I'll document what I shall call "resurrecting Plessy": the phenomenon, evident in both liberal and conservative scholarship and opinions, of charging one's opponents with repeating the mistakes of Plessy v. Ferguson.4 I'll illustrate the liberal version …


Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher Jul 2008

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?


Zappers & Phantom-Ware: A Global Demand For Tax Fraud Technology, Richard Thompson Ainsworth Jun 2008

Zappers & Phantom-Ware: A Global Demand For Tax Fraud Technology, Richard Thompson Ainsworth

Faculty Scholarship

There is a demand-market for technology that facilitates tax fraud. By all accounts the providers in this market are working in a growth industry.

In the short term this is bad news for those concerned with tax policy and information privacy. In the long term however, the fight against technology-assisted fraud is stimulating the development of a more robust technology base within tax administrations, and this is good news for those who believe that a sophisticated technological infrastructure is needed to resolve difficult questions of tax design.

This paper focuses on two technology-accelerants of SME tax fraud - zappers and …


A Comment On The Relationship Between Judicial Salary And Judicial Quality, Stephen G. Marks Jun 2008

A Comment On The Relationship Between Judicial Salary And Judicial Quality, Stephen G. Marks

Faculty Scholarship

Professor Scott Baker was kind enough to present his empirical research on the relationship between judicial salary and judicial quality to the Law and Economics Workshop run by Professor Keith Hylton and me last fall and I am honored to be able to comment on it today. It is part of a growing body of literature in law that tries to shed light on important issues through statistical analysis. Baker's paper, even before its publication, generated a significant amount of buzz.


The Incomplete Global Market For Tax Information, Steven Dean May 2008

The Incomplete Global Market For Tax Information, Steven Dean

Faculty Scholarship

No abstract provided.


Non-Signatories And The New York Convention, William W. Park May 2008

Non-Signatories And The New York Convention, William W. Park

Faculty Scholarship

In the context of arbitrations subject to the New York Convention, the term ,non-signatory' might evoke several lines of inquiry. Must commitments to arbitrate be signed? What legal framework guides decision-making about who agreed to arbitrate? How should courts monitor an arbitrator's assertion of jurisdiction over someone who never signed an arbitration agreement?

The second of these matters - rules about who agreed to arbitrate - will retain our attention in this paper. While few commentators deny that arbitration rests on consent,1 less unanimity exists about what exactly constitutes such consent when one side contests that it ever waived …


Sovereignty As Discourse, Robert L. Tsai Apr 2008

Sovereignty As Discourse, Robert L. Tsai

Faculty Scholarship

This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.


Recent Case, Ninth Circuit Considers Community's Racial Tension With Police In Finding Illegal Seizure And Lack Of Voluntary Consent. — United States V. Washington, 490 F.3d 765 (9th Cir. 2007), Portia Pedro Apr 2008

Recent Case, Ninth Circuit Considers Community's Racial Tension With Police In Finding Illegal Seizure And Lack Of Voluntary Consent. — United States V. Washington, 490 F.3d 765 (9th Cir. 2007), Portia Pedro

Faculty Scholarship

The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. Although the choice of viewpoint is often left out of the story, much also depends on whose perspective — police officers’ or civilians’ — a judge employs for search and seizure determinations. The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. In United States v. Washington, the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, …


Private Investment Funds: Hedge Funds' Regulation By Size, Tamar Frankel Apr 2008

Private Investment Funds: Hedge Funds' Regulation By Size, Tamar Frankel

Faculty Scholarship

This Article focuses on hedge funds-a species of private investment funds. These funds appeared in the 1950s and remained active but small. Then, in a fairly short period, they grew enormously to over $1.5 trillion, although the estimates vary.1 Hedge fund managers engage in more than twenty-five different categories of investment strategies.2 Since 2002, the number of hedge funds has more than doubled to an estimated 9,000 funds,3 and their assets have grown by 400% to an estimated $1.4 trillion since 1999.4 Other estimates are higher, suggesting current hedge fund assets at $2 trillion and their …


Myths And Realities Of The Palestinian Refugee Problem: Reframing The Right Of Return, Susan M. Akram Apr 2008

Myths And Realities Of The Palestinian Refugee Problem: Reframing The Right Of Return, Susan M. Akram

Faculty Scholarship

The essay discusses elements of the Palestinian refugee problem that are found in numerous mass refugee situations in Africa, Central America, Asia and Europe. What remains unique about the Palestinian refugee problem is the persistent and severe denial of international protection, the lack of access both to a durable solution and to the mechanisms for implementing a durable solution -- minimum protection guarantees that are available to other refugee populations. This paper describes the main legal issues underlying the Palestinian refugee question, examining and deconstructing several of the key arguments surrounding the rights and principles involved in the refugee problem. …


Due Process And Punitive Damages: An Economic Approach, Keith N. Hylton Apr 2008

Due Process And Punitive Damages: An Economic Approach, Keith N. Hylton

Faculty Scholarship

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower …


What Lurks Beneath: Nsa Surveillance And Executive Power Symposium: The Role Of The President In The Twenty-First Century, Gary S. Lawson Apr 2008

What Lurks Beneath: Nsa Surveillance And Executive Power Symposium: The Role Of The President In The Twenty-First Century, Gary S. Lawson

Faculty Scholarship

It is not surprising that, nearly two and a quarter centuries after ratification of the Federal Constitution, people are still actively arguing about the extent of the American President's powers.' The concept of executive power is notoriously murky,2 so disputes about its scope and character are virtually unavoidable. It is, however, at least a tad surprising that, nearly two and a quarter centuries after ratification of the Federal Constitution, people are still arguing about the constitutional sources of presidential power. 3 It is one thing to disagree about how far the President's power extends, but it is quite another thing …


Weyerhaeuser, Predatory Bidding, And Error Costs, Keith N. Hylton Apr 2008

Weyerhaeuser, Predatory Bidding, And Error Costs, Keith N. Hylton

Faculty Scholarship

In Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,' the Supreme Court held that the plaintiff in a predatory pricing lawsuit must show that the price during the predatory campaign was cut below some relevant measure of cost and that there was a dangerous probability that the predatory firm would recoup the losses from its predation campaign.2 Weyerhaeuser v. Ross-Simmons Hardwood Lumber Co.' held that the standard adopted in Brooke Group also applies to predatory bidding claims.

A predatory bidding campaign is a lot like a predatory pricing campaign. Both involve a predation period, in which the …


Social Solidarity And Personal Responsibility In Health Reform, Wendy K. Mariner Apr 2008

Social Solidarity And Personal Responsibility In Health Reform, Wendy K. Mariner

Faculty Scholarship

In the United States, calls to expand access to health care, when not simply ignored, typically result in bills or legislation to reform health insurance. We are in the midst of just such a cycle today. Several states have adopted reform laws to make insurance available to most of their residents.' Presidential candidates are offering their own proposals for the nation's health care system.2 Former Treasury Secretary Paul O'Neill even declared that health care should be a right, adding that wealthier people should help pay for those who will never be able to afford their own care.' Most Americans …


Taxation As A Global Socio-Legal Phenomenon, Allison Christians, Steven Dean, Diane Ring, Adam H. Rosenzweig Apr 2008

Taxation As A Global Socio-Legal Phenomenon, Allison Christians, Steven Dean, Diane Ring, Adam H. Rosenzweig

Faculty Scholarship

This essay makes a proposal that may not be controversial among those with a particular interest in international law, but may be less accepted among those primarily interested in tax law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions. As a result, to incorporate these lessons, tax scholarship should turn to fields such as international relations, organizational theory, and political philosophy to provide a broader framework for understanding the rapid changes that are taking place in tax policy and politics in the United States and around the world.


(Presidential) Powers In The European Union, Daniela Caruso Apr 2008

(Presidential) Powers In The European Union, Daniela Caruso

Faculty Scholarship

Presidential Powers and Functional Equivalence The comparative methodology embraced by Jenny Martinez, the first speaker on this panel, is functionalism - a traditional tool for comparative inquiries.' Functionalism starts from the pragmatic assumption that societies sharing similar values will perform identical tasks even if by means of different rules. Functionalism posits the possibility of comparing the relative success of such rules, and hence borrowing useful insights from analogous foreign experiences.2 Accordingly, Professor Martinez has identified functional common ground in various legal systems, analyzed the scope and substance of presidential powers in several European States, and skillfully compared the status of …


The Economic Theory Of Nuisance Law And Implications For Environmental Regulation, Keith N. Hylton Apr 2008

The Economic Theory Of Nuisance Law And Implications For Environmental Regulation, Keith N. Hylton

Faculty Scholarship

In this article, I will explore in detail the structure of nuisance law as a mechanism for regulating environmental interferences and suggest a modernized enforcement regime. The modem regime would retain public enforcement primarily in identifying environmental harms. Public enforcement might also be retained in the discovery of sources of harm, as long as it is more efficient than private enforcement in that task. However, enforcement efforts in the proposed regime would largely be delegated to private enforcers. Moreover, the decentralized approach would permit tougher environmental rules than under the public enforcement approach in some areas, and perhaps weaker regulations …