Law and Economics Commons^™

Labor, Trade, And Populism: How Ilo-Wto Collaboration Can Save The Global Economic Order, Sungjoon Cho, Cesar F. Rosado-Marzan

American University Law Review

Populists are trying to take down the global economic order and its institutions. While some of those forces might be fueled by racism, they also play to legitimate social concerns that include massive plant closings and deindustrialization, inadequate skills programs, and lack of decent jobs. Some of these problems also concern the Global South, as workers there face exploitation, unhealthy working conditions, and other social ills caused by global capitalism. In light of these problems, this Article argues that the International Labor Organization (ILO) should design new conventions on lead firm liability and mass layoffs. While other scholars and policymakers …

The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe

American University Law Review

The drafters of the Sherman Act originally designed Section 2 to impose sanctions on all monopolies and attempts to monopolize, regardless whether the firm had engaged in anticompetitive conduct. This conclusion emerges from the first ever textualist analysis of the language in the statute, a form of interpretation originally performed only by Justice Scalia but now increasingly used by the Supreme Court, including in its recent Bostock decision.

Following Scalia’s methodology, this Article analyzes contemporaneous dictionaries, legal treatises, and cases and demonstrates that when the Sherman Act was passed, the word “monopolize” simply meant that someone had acquired a monopoly. …

Stay In The Fight With Civility And Professionalism, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Sandbox Boundaries, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

Around the world, subnational and national regulatory sandboxes are being adopted in an effort to promote fintech innovation. These regulatory sandboxes seek to achieve this by rolling back some of the consumer protection and prudential regulations that would otherwise apply to the firms trialing their financial products and services in the sandbox. While sacrificing such protections in order to promote innovation is problematic, such sacrifice may nonetheless be justifiable if, by working with innovators in the sandbox, regulators are educated about new technologies in a way that enhances their ability to effectively promote consumer protection and financial stability in other …

Experimental Strategies For Regulating Fintech, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

Faced with new technologies that confound existing financial regulatory structures, regulators around the world have been experimenting with new approaches to regulating fintech. The most prominent of these experiments have been innovator-focused programs that provide guidance (and in the case of regulatory sandboxes, regulatory relief) to private sector firms, in order to help them navigate a confusing thicket of financial regulation that might otherwise impede their innovation. These innovator-focused programs can improve efficiency and competition in the provision of financial services, but can – at best – only make incidental contributions to the financial regulatory goals of consumer and investor …

Race, Space And Democracy: Locally-Based Strategies For Development - Panel Discussion From Fourth National People Of Color Legal Scholarship Conference, Hosted At The American University Washington College Of Law, Ezra Rosser, Audrey Mcfarlane, Erika Wilson, Michele Alexander

Scholarly Articles in Law Reviews & Journals

Panel Discussion from Fourth National People of Color Legal Scholarship Conference, Hosted at the American University Washington College of Law:

[Audrey McFarlane] Alright, good morning everyone, thank you for joining us. This is the race, space, and democracy panel, locally based strategies for

development. Right now we have with us, me. I'm Audrey McFarlane. I'm a professor at the University of Baltimore. We also have Erika Wilson, who is a professor at the University of North Carolina. I'm going to dispense with the long bios, and commend you to the program guide for the long bios. Suffice it to say, …

Reclaiming Place-Based Development Incentive, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Professor Michelle Layser's forthcoming article is an attack on the current form of place-based tax incentive programs. Layser argues that while rhetorically such programs are said to help the poor, by design they support gentrification in ways that harm the poor. The article ends with a call to reform place-based incentive programs so that the poor in selected areas actually benefit.

Federal Courts And The Poor: Lack Of Standards And Uniformity In Civil In Forma Pauperis Pleadings, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Andrew Hammond's article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond's article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for …

Unravelling China's Gradual Approach To Equity Crowdfunding Regulation, Chen Li, Yu Qianqian

American University Business Law Review

No abstract provided.

Not All Virtual Currencies Are Created Equal: Regulatory Guidance In The Aftermath Of Cftc V. Mcdonnell, Allen Kogan

American University Business Law Review

No abstract provided.

How The Sec Can Help Mitigate The "Proactive" Agency Costs Of Agency Capitalism, Bernard S. Sharfman

American University Business Law Review

No abstract provided.

The Regulatory Accountability Act Loses Steam But The Trump Executive Order On Alj Selection Upturned 71 Years Of Practice, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Tailoring Intellectual Property Rights To Reduce Uniformity Cost, Michael W. Carroll

Contributions to Books

No abstract provided.

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Multilateral Development Banks, Their Member States And Public Accountability: A Proposal, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

More than 25 years ago the multilateral development banks (MDBs) began establishing independent accountability mechanisms (IAMs), such as the World Bank’s Inspection Panel, to address concerns about MDB accountability to those communities and groups who were harmed by their decisions and actions. This essay argues that these mechanisms need updating. In the interests of promoting new and creative thinking about these mechanisms, it makes an ambitious two-part proposal designed to improve the efficacy of the IAMs, while also respecting the sovereignty of their member states and protecting an appropriate level of immunity for the MDBs. First, the MDBs should jointly …

Why Central Banks Need To Take Human Rights More Seriously, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

Most central bankers think that there is a tenuous connection between the operations of central banks and human rights. Their responsibility is to concentrate on the relatively narrow set of macro-economic variables that are relevant to their mandates and to leave to their country’s political leadership the decisions dealing with the complex and politically sensitive variables that affect the functioning of the economy and society.

This position is no longer tenable. Climate change is forcing the central banking community to rethink their view of their responsibilities. The recent release of the Network for Greening, the Financial System’s first comprehensive report …

Property, Race, Segregation, And The State Property, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Property scholars have neither forgotten nor ignored the government's role in creating and furthering racial segregation. Scholars have written extensive work on redlining, racially restrictive covenants, the siting of public housing in minority poor communities and the resistance of wealthier white towns to affordable housing.

Nevertheless, Richard Rothstein's book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government-at the local, state, and federal levels-denied African-Americans equal access to space and property.

Unlocking Antitrust Enforcement, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Economic Justice Imperative For Lawyers In Trump Country, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This article serves as a call to action for rural law schools to meaningfully incorporate economic justice into transactional legal education, and in doing so, train much needed rural advocates, legal experts, and local leaders. Rural areas are continuously portrayed as “Trump Country” in today’s mainstream media coverage, which largely focuses on socio-cultural differences between urban and rural areas. Many rural scholars and activists are troubled by the “Trump Country” label as it masks the structural poverty issues that lead to housing insecurity, water insecurity, poor public health indicators, unemployment, underemployment, troubled public education systems, and environmental degradation impacting both …

Assessing The Potential For Global Economic Governance Reform, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

Every dynamic social system’s adaptive capacity is finite. Eventually, the ability of the system’s legal and institutional arrangements to adapt to the changing operational context is exhausted. At this point, unless the system is significantly reformed, it begins losing its legitimacy and efficacy.

This article contends that the structure, operation and scale of the global economy has changed so dramatically that the current arrangements for global economic governance are approaching this crisis moment. They are failing to deliver an inclusive, sustainable and efficient international economic system that can contribute to peace, prosperity and human welfare. Their governance arrangements and operating …

Scaling Development Finance For Our Common Future, Daniel D. Bradlow, Kevin P. Gallagher, Leandro Serino, Jose Siaba Serrate

Scholarly Articles in Law Reviews & Journals

The G-20 and the broader world community has committed to ambitious goals to close global infrastructure gaps, mitigate climate change, and advance the 2030 Agenda for development. We call on G20 leaders to task development finance institutions (DFIs) such as the development banks in member countries and the Multilateral Development Banks (MDBs) of which G-20 countries are members, to commit to scaling up resources by 25 percent, to calibrate new financing to international commitments to mitigate climate change and the 2030 agenda, and to work together as an inclusive system toward achieving those shared goals.

International Financial Regulatory Standards And Human Rights: Connecting The Dots, Daniel D. Bradlow, Motoko Aizawa, Margaret Wachenfeld

Scholarly Articles in Law Reviews & Journals

This paper’s hypothesis is that the international standard setting bodies (SSBs) could improve the quality of their international standards by incorporating a human rights analysis. It focuses on five SSBs and seven of their international standards and its findings include the following: First, the standards all implicate the right of non-discrimination, and the rights to information, privacy and an effective remedy. Second, they each raises economic, social and cultural rights issues, including the obligation to allocate ‘maximum available resources’ to the progressive realization of economic, social and cultural rights; the human rights responsibilities of private actors exercising delegated regulatory authority, …

Inside The Arbitrator's Mind, Susan Franck

Scholarly Articles in Law Reviews & Journals

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Exploiting The Poor: Housing, Markets, And Vulnerability, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Matthew Desmond provocatively claims that landlords exploit poor tenants in his Pulitzer Prize winning book, Evicted: Poverty and Profit in the American City (2016). This essay celebrates Desmond's work and explores the exploitation claim, focusing on how landlords deliberately exploit vulnerable tenants and on forms of market-based exploitation.

The Fiscal Illusion Zombie: The Undead Theory Of Government Regulatory Incentives, Christopher Serkin

American University Law Review

This is a Response to Bethany R. Berger's recent Article, The Illusion of Fiscal Illusion in Regulatory Takings. In that Article, Professor Berger argues against the view that governments should be forced to compensate for regulatory burdens because they suffer from fiscal illusion and will only internalize the costs that they, in fact, have to pay. She demonstrates that property taxes already provide a mechanism through which governments internalize both the costs and benefits of their property regulations, and that compensation for regulatory takings is therefore unnecessary and even perverse for creating efficient regulatory incentives. This Response argues that she …

Building Bridges: Why Expanding Optional Practical Training Is A Valid Exercise Of Agency Authority And How It Helps F-1 Students Transition To H-1b Worker Status, Pia Nitzschke

American University Law Review

No abstract provided.

Why Anti-Surcharge Laws Do Not Violate A Merchant's Freedom Of Speech, Annie P. Anderson

American University Law Review

First Amendment litigation is surrounding state anti-surcharge laws, which prevent merchants from imposing surcharges on transactions where customers use credit cards. These laws effectively prevent stores from passing credit card "swipe fees" onto their customers. Merchants argue that because the laws still allow them to provide discounts to customers who use other forms of payment, the laws violate their First Amendment rights by impermissibly restricting the way the stores can communicate. The state governments, in contrast, have defended the laws by asserting that they regulate conduct, not business speech, and therefore do not violate the First Amendment.

The Supreme Court …

Teaching And Practicing Community Development Poverty Law: Lawyers And Clients As Trusted Neighborhood Problem Solvers, Susan Bennett, Alicia Alvarez, Louise Howells, Hannah Lieberman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

$=Euro=Bitcoin, Hilary Allen

Scholarly Articles in Law Reviews & Journals

Bitcoin (and other virtual currencies) have the potential to revolutionize the way that payments are processed, but only if they become ubiquitous. This Article argues that if virtual currencies are used at that scale, it would pose threats to the stability of the financial system-threats that have been largely unexplored to date. Such threats will arise because the ability of a virtual currency to function as money is very fragile-Bitcoin can remain money only for so long as people have confidence that bitcoins will be readily accepted by others as a means of payment. Unlike the U.S. dollar, which is …

Narrowly-Tailored Privatization, Brandon Weiss

Scholarly Articles in Law Reviews & Journals

Affordable housing projects in the United States have served as an integral part, and often the backbone, of broader community economic development (CED) initiatives for as long as community development corporations (CDCs) have existed. As the field of CED evolves, and critical thinking about the role of law and lawyers within it continues to develop, it is important that this thinking include a rigorous reevaluation of how affordable housing strategies can best support the broader aims of CED. Evidence from eighty years of significant federal policy intervention in affordable housing, fifty years of experimentation by CDCs, and thirty years of …