Law Commons^™

Brokered Abuse, Thomas E. Kadri

Articles

No abstract provided.

Patent's New Salience, Janet Freilich

Faculty Scholarship

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the …

Unfair Competition Under The Usmca: The Case Of Migrant Workers On Us Farms, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Tax Benefits And Fairness In K–12 Education, Linda Sugin

Faculty Scholarship

This Article examines the tax law’s subsidies for inequality and segregation in primary and secondary education, analyzing the federal charitable deduction and education savings plans, and state tax credits for education. It argues that the tax system diverts funds from traditional public education into private education, fostering economic, racial, religious, and political separation. The tax law also operates to increase resource inequality within public education by subsidizing schools that affluent children attend. In a novel analysis, the Article contends that the jurisprudence around the charitable deduction for education—though longstanding—is legally incoherent, and argues that no deduction should ever be allowed …

`Representing And Being Represented In Turn’ – A Symposium On Hélène Landemore’S Open Democracy, Ethan J. Leib

Faculty Scholarship

No abstract provided.

When Donor Meets Purpose, Atinuke O. Adediran

Faculty Scholarship

This Essay addresses a gap in law and the Restatement of the Law Charitable Nonproít Organizations regarding the relationship between a charitable nonproít’s donors and its purpose. I argue that charitable nonproíts can align their purposes with the personal or professional identities of their donors, and it may be in the best interest of some charities to do so. Charities whose purposes are to address racial or economic inequality should seriously consider aligning their donor identity with their purpose as a way of improving their legitimacy in the communities they serve, and to reach previously untapped sources of funding.

Civil Justice At The Crossroads: Should Courts Authorize Nonlawyers To Practice Law?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani

Faculty Scholarship

How patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of followon innovation is not patent infringement. Supplementing the study’s empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure helps better identify the …

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

Scholarly Works

This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

The Case Against The Case For Zoning, Michael Lewyn

Scholarly Works

Critiques an article defending zoning. In particular, the article notes that a traditional justification for zoning is that it conserves community character. This argument fails because when people priced out of exclusive neighborhoods move to other areas, they change the character of the receiving area. Similarly, the argument that zoning prevents infrastructure from being overloaded overlooks the fact that if people priced out of one area move to a cheaper area, the latter area's infrastructure is equally burdened. A third argument is that zoning allows local governments to push the costs of growth to developers- but the sluggish growth of …

Labor Rights And Dispute System Design: Assessing The Legal Legacy Of The 2022 Qatar World Cup, Zachary R. Calo

Scholarly Works

The aim of this paper is not to relitigate Qatar’s human rights record but to assess the effectiveness of its labor reforms: the principal concern is dispute resolution and enforceability. While Qatar instituted a broad suite of labor law reforms in the years preceding the World Cup, questions remain about whether they have improved access to justice for migrant workers. More attention needs to be given to the dispute settlement system established by Law No. 13 of 2017 to assess if new legal norms translate into enforceable rights. It is argued that the labor dispute system has largely failed by …

Black Liberty In Emergency, Norrinda Brown

Faculty Scholarship

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted …

Megalopolis Bound?, Nestor M. Davidson

Faculty Scholarship

Since ancient Greece’s “megalopolis,” the concept of vast cities has loomed in the urban discourse. A century ago, English planner Patrick Geddes warned about a growing imbalance between traditional society and ever-larger conurbations, an anxiety that Lewis Mumford later invoked to predict that urban hubris would inevitably collapse of its own weight. In 1961, by contrast, the geographer Jean Gottman surveyed the interconnected agglomeration stretching from Washington, D.C. up the east coast of the United States to the cities of southern New England, and more optimistically highlighted this new urban form’s governance potential.

Today, the question is not whether urbanism …

Class Action Settlements As Contracts?, Howard M. Erichson, Ethan J. Leib

Faculty Scholarship

Courts routinely declare that class action settlement agreements are contracts, and when called on to interpret and enforce such settlements, courts invoke principles of contract law. But is a class action settlement really a contract? The relevant agreement in a class settlement is struck between a defendant and class counsel or class representatives; it is not an agreement with class members. What binds class members to the deal is not that they agreed to it, nor even that they agreed to be represented, but rather that a judge found the matter suitable for class treatment and entered judgment approving the …

Testing Political Antitrust, Nolan Mccarty, Sepehr Shahshahani

Faculty Scholarship

Observers fear that large corporations have amassed too much political power. The central fact that animates this concern is growing economic concentration—the rise in the market share of a small number of top firms. These firms are thought to use their enhanced economic power to capture the government and undermine democracy by lobbying. Many scholars and activists have urged the use of antitrust law to combat this threat, leading a “political antitrust” movement that advocates explicit incorporation of political considerations into antitrust enforcement. Political antitrust has sparked great debate not only in academic circles but also among policymakers.

But the …

Tragedy Of The Digital Commons, Chinmayi Sharma

Faculty Scholarship

Google, iPhones, the national power grid, surgical operating rooms, baby monitors, surveillance technology, and wastewater management systems all run on open-source software. Open-source software, or software that is free and publicly available, powers our day-to-day lives. As a resource, it defies economic logic; it is built by developers, many of whom are volunteers, who build projects with the altruistic intention of donating them to the digital commons. Developers use it because it saves time and money and promotes innovation. Its benefits have led to its ubiquity and indispensability. Today, over ninety-seven percent of all software uses open source. Without it, …

Depoliticizing Federal Prosecution, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

There is broad agreement that federal prosecutors should not use their power to pursue partisan political objectives, but there is stark disagreement about how to prevent them from abusing their power in this way. Geoffrey Berman, a former U.S. Attorney for the Southern District of New York, recently argued that U.S. Attorneys should have complete autonomy and independence from the Attorney General and administration. Attorney General Bill Barr, in contrast, has insisted that Attorneys General should have full control over prosecutors so the administration can be held politically accountable. Neither view fully addresses the problem. Barr minimizes the significant risk …

Democracy And Law In The New American Antitrust, Zephyr Teachout

Faculty Scholarship

There is an inverse relationship between those who argue that judges, guided by economists, are well suited to the task of determining the ultimate social value of an individual merger or business practice, and those who believe that antitrust law plays a central role in the protection of human freedom and democracy.

The more one is concerned with private sector threats to freedom, the more one treats antitrust as a public enterprise and seeks simple, publicly legible rules, with less discretion for judges, and a limited role for case-specific economic analysis. Conversely, if one is relatively unconcerned with democratic threats …

Sherman V. Department Of Public Safety: Institutional Responsibility For Sexual Assault, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department …

Getting The Law Right: An Essay In Honor Of Aaron Twerski, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current …

How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.

Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a contractual …

Antitrust Worker Protections: Rejecting Multi-Market Balancing As A Justification For Anticompetitive Harms To Workers, Laura Alexander, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting ` purchasers, rather than focusing solely on the impact of the restraint on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This …

Gender Mainstreaming In Trade Agreements: "A Potemkin Façade"?, Katrin Kuhlmann, Amrita Bahri

Georgetown Law Faculty Publications and Other Works

The distributional outcomes of trade agreements have historically been uneven, creating both “losers” as well as “winners” and benefitting certain stakeholders while leaving others without benefits or even with negative repercussions. In particular, distributional outcomes can vary between women and men, since they play different roles in society, markets, and economies, and they enjoy different opportunities as well. At times, and sometimes by their very nature, trade agreements can restrict opportunities for women and further increase the gender divide. But in recent years, there has been a drastic upsurge in the number of countries that are incorporating commitments on gender …

Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory …

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Do campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.

We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties. …

Entire Issue Vol. 12 No. 4

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol. 12(4)

Entire Issue Vol. 12 No. 5

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol. 12(5)

Table Of Contents

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Table of contents

Approaches To Sea Level Rise And International Law: A Comparative View Of Emerging Policy Responses By The African And The Americas Regions, Charles Chernor Jalloh

Articles

No abstract provided.