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Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp Dec 2018

Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp

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Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of …


Prophylactic Merger Policy, Herbert J. Hovenkamp Dec 2018

Prophylactic Merger Policy, Herbert J. Hovenkamp

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An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there …


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff Dec 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

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After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of …


Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad Nov 2018

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

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The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …


A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson Oct 2018

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

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It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one …


The Securities Law Implications Of Financial Illiteracy, Lisa Fairfax Oct 2018

The Securities Law Implications Of Financial Illiteracy, Lisa Fairfax

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Every financial literacy study conducted over the last few decades concurs: Americans, including American investors, are financially illiterate. This Article argues that America’s financial illiteracy poses a significant, widespread, and long-term challenge for our federal securities regime because that regime is premised almost entirely on disclosure as the best form of investor protection and, by extension, on investors’ ability to understand disclosure. By advancing a typology of investors and their disclosure needs, this Article further argues that we may have significantly underestimated the extent of the financial illiteracy problem based on at least two flawed assumptions. First, we have presumed …


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

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Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …


Judicious Imprisonment, Gregory Jay Hall Sep 2018

Judicious Imprisonment, Gregory Jay Hall

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Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …


The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow Aug 2018

The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow

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In this report, Shakow explains how a decentralized autonomous organization functions and interacts with the U.S. tax system and presents the many tax issues that these structures raise. The possibility of using smart contracts to allow an entity to operate totally autonomously on a blockchain platform seems attractive. However, little thought has been given to how such an entity can comply with the requirements of a tax system. The DAO, the first major attempt to create such an organization, failed because of a programming error. If successful examples proliferate in the future, tax authorities will face significant problems in getting …


The Salience Theory Of Consumer Financial Regulation, Natasha Sarin Aug 2018

The Salience Theory Of Consumer Financial Regulation, Natasha Sarin

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Prior to the financial crisis, banks’ fee income was their fastest-growing source of revenue. This revenue was often generated through nefarious bank practices (e.g., ordering overdraft transactions for maximal fees). The crisis focused popular attention on the extent to which current regulatory tools failed consumers in these markets, and policymakers responded: A new Consumer Financial Protection Bureau was tasked with monitoring consumer finance products, and some of the earliest post-crisis financial reforms sought to lower consumer costs. This Article is the first to empirically evaluate the success of the consumer finance reform agenda by considering three recent price regulations: a …


Marginal Rates Under The Tcja, Reed Shuldiner Jun 2018

Marginal Rates Under The Tcja, Reed Shuldiner

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In this report, Shuldiner argues that although the Tax Cuts and Jobs Act appears to offer an across-the board reduction in individual marginal tax rates augmented by an additional 20 percent reduction in rates on unincorporated business income, the situation is significantly more complex.


Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr. Jun 2018

Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr.

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This Essay draws both on my scholarly and on my personal experience as a member of Puerto Rico’s oversight board to assess the first two years of the Board’s existence. I begin in a scholarly mode, by exploring the question of where P.R.O.M.E.S.A., the legislation that created the Board, came from. P.R.O.M.E.S.A.’s core provisions are, I will argue, the product of two historical patterns that have emerged in responses to the financial distress of public entities in the United States. The first dates back to the 1970s crisis in New York City, while the second is much more recent. If …


Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe Jun 2018

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

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In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …


1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson Jun 2018

1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …


Military Justice: A Very Short Introduction (Book Review), Mark Patrick Nevitt May 2018

Military Justice: A Very Short Introduction (Book Review), Mark Patrick Nevitt

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This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad.

The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature. …


The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven Heyman May 2018

The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven Heyman

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No abstract provided.


Ukraine And The Evaporating Hyphen Of Market-Democracy, Monica Eppinger Apr 2018

Ukraine And The Evaporating Hyphen Of Market-Democracy, Monica Eppinger

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This post is part of the series Lessons for Liberalism from the “Illiberal East”

Information wars, fake news, kompromat: surprised Ukrainians have found their lexicon for foreign interference spread as loan-words across a putative new Cold War. Narratives of hegemony long familiar in Ukraine have metastasized, and their protagonists—troll hordes, political technologists, the Paul Manaforts and Victoria Nulands—have been set loose far beyond Ukrainian borders. For those who are anxious that liberalism is stumbling into traps laid by foreign intelligence, stuck trading off with fascism and socialism or otherwise in crisis, Ukraine’s recent history …


Was The Amt Effectively Repealed?, Reed Shuldiner Apr 2018

Was The Amt Effectively Repealed?, Reed Shuldiner

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The individual alternative minimum tax (AMT) was a much disliked feature of the tax law prior to the Tax Cuts and Jobs Act (TCJA). Yet, despite repeated promises to repeal the AMT as part of tax reform, the TCJA dropped AMT repeal in favor of increasing the AMT exemption and its phaseout threshold. The question raised by this development is whether the AMT changes should be viewed as yet another stop-gap tweak of the AMT or whether the changes should be viewed as returning the AMT to its roots as a tax on high-income taxpayers using excessive loopholes. In this …


Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo Apr 2018

Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo

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Although the debate over hipster antitrust is often portrayed as something new, experienced observers recognize it as a replay of an old argument that was resolved by the global consensus that antitrust should focus on consumer welfare rather than on the size of firms, the levels of industry concentration, and other considerations. Moreover, the history of the Federal Trade Commission’s Section 5 authority to prevent unfair methods of competition stands as a reminder of the dangers of allowing enforcement policy to be guided by vague and uncertain standards.


Law’S Facilitating Role In The Field Of Social Enterprise., Evelyn Brody Mar 2018

Law’S Facilitating Role In The Field Of Social Enterprise., Evelyn Brody

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A Review of Dana Brakman Reiser and Steven A. Dean. Social Enterprise Law: Trust, Public Benefit, and Capital Markets. New York: Oxford University Press, 2017, 216 pp., $44.95 (hardback) ISBN 978-0-19-024978-6To appreciate the contribution of Professors Dana Brakman Reiser and Steven A. Dean in their pathbreaking volume on social enterprise law, we must begin by recognizing what we are not discussing. As the authors declare: “social enterprises are not charities” (p. 165). By definition, social enterprises are businesses, and thus not subject to the nondistribution constraint so familiar to nonprofit scholars and practitioners. An impact investor seeks profit, perhaps limited …


Liability For Mass Sexual Abuse, Tsachi Keren-Paz, Richard Wright Mar 2018

Liability For Mass Sexual Abuse, Tsachi Keren-Paz, Richard Wright

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When harm is caused to victims by multiple injurers, difficult issues arise indetermining causation of, legal responsibility for, and allocation of liability forthose harms. Nowhere is this truer than in child pornography and sex traffickingcases, in which individuals have been victimized over extended periods oftime by hundreds or even many thousands of injurers, with multiple and oftenoverlapping victims of each injurer. Courts (and lawyers) struggle with thesesituations for a simple reason: they insist on applying tests of causation thatfail when the effect was over-determined by multiple conditions. The failure toproperly understand the causation issue has exacerbated failures to properlyunderstand and …


The Dynamic Impact Of Periodic Review On Women’S Rights, Cosette D. Creamer, Beth A. Simmons Feb 2018

The Dynamic Impact Of Periodic Review On Women’S Rights, Cosette D. Creamer, Beth A. Simmons

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Human rights treaty bodies have been frequently criticized as useless and the regime’s self-reporting procedure widely viewed as a whitewash. Yet very little research explores what, if any, influence this periodic review process has on governments’ implementation of and compliance with treaty obligations. We argue oversight committees may play an important role in improving rights on the ground by providing information for international and primarily domestic audiences. This paper examines the cumulative effects on women’s rights of self-reporting and oversight review, using original data on the history of state reporting to and review by the Committee on the Elimination of …


Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason Jan 2018

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

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In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.


Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick Jan 2018

Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick

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Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.

This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews and analysis of …


The Federal Rules Of Inmate Appeals, Catherine T. Struve Jan 2018

The Federal Rules Of Inmate Appeals, Catherine T. Struve

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The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management …


Statutory Rape, Paul H. Robinson, Tyler Scot Williams Jan 2018

Statutory Rape, Paul H. Robinson, Tyler Scot Williams

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It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …


The Ecology Of Transparency Reloaded, Seth F. Kreimer Jan 2018

The Ecology Of Transparency Reloaded, Seth F. Kreimer

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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …


Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams Jan 2018

Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams

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This first chapter from the recently published book Mapping American Criminal Law: Variations across the 50 States documents the alternative distributive principles for criminal liability and punishment — desert, deterrence, incapacitation of the dangerous — that are officially recognized by law in each of the American states. The chapter contains two maps visually coded to display important differences: the first map shows which states have adopted desert, deterrence, or incapacitation as a distributive principle, while the second map shows which form of desert is adopted in those jurisdictions that recognize desert. Like all 38 chapters in the book, which covers …


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

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This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …


Planning For Excellence: Insights From An International Review Of Regulators' Strategic Plans, Adam M. Finkel, Daniel Walters, Angus Corbett Jan 2018

Planning For Excellence: Insights From An International Review Of Regulators' Strategic Plans, Adam M. Finkel, Daniel Walters, Angus Corbett

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What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …