Law and Economics Commons^™

The Public Stakes Of Consumer Law: The Environment, The Economy, Health, Disinformation, And Beyond, Rory Van Loo

Faculty Scholarship

This Article shows how consumer law, a field “derided as the law of small problems,”⁴ is more accurately viewed as important for addressing large-scale societal threats. It also offers a more integrated conceptual and institutional approach to consumer law so that the field can have a better chance of fulfilling its societal potential.

Part I of this Article outlines the importance of consumer law. It maps consumer law’s connections to some of the most pressing societal threats: climate change, public health, inequality, and disinformation. Part II focuses on consumer law’s place in the legal academy and government. Currently, important …

Menger Or Marx? The Political Ontology Of Cryptocurrency, Rector Tully, J.G. Allen

Research Collection Yong Pung How School Of Law

One of the perennial fault-lines in monetary theory is that between commodity and credit theories of money. The emergence of alternative payment systems based on blockchain and distributed ledger technologies, of which Bitcoin is the most prominent example, has raised a host of important questions in relation to this debate. This article considers two. The first is ontological: Are Bitcoin and similar ‘cryptocurrencies’ best conceived of as money? The second is political: Do these money candidates represent an emancipatory development over state-backed fiat currency? The ontological question, we will argue, invites the political one. If it is the case, as …

The Meme Stock Frenzy: Origins And Implications, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Law & Economics Working Papers

In 2021, several publicly traded companies, such as GameStop and AMC, became “meme stocks,” experiencing a sharp rise in their stock prices through a dramatic influx of retail investors into their shareholder base. Analyses of the meme stock surge and its implications for corporate governance have focused on the idiosyncratic creation of online communities around particular stocks during the COVID-19 pandemic. In this Article, we argue that the emergence of meme stocks is part of longer-running digital transformations in trading, investing, and governance. On the trading front, the sudden abolition of commissions by major online brokerages in 2019 reduced entry …

Racial Diversity And Law Firm Economics, Jack Thorlin

Arkansas Law Review

There is an eternal temptation to think that if one recognizes a moral problem and does something about it, then one is blameless even if the action taken does not solve the problem. We usually recognize that it is absurd to credit intent when the disconnect from results is vast—consider the rightfully mocked tendency of people to respond to tragedies by declaring that their “thoughts and prayers” are with the victims rather than taking any meaningful step to ameliorate their suffering. People still engage in such posturing because the behavior benefits them in several ways: (a) others see that the …

Racism Pays: How Racial Exploitation Gets Innovation Off The Ground, Daria Roithmayr

Michigan Journal of Race and Law

Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because …

The Future Of Roe And The Gender Pay Gap: An Empirical Assessment, Itay Ravid, Jonathan Zandberg

Indiana Law Journal

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court upheld a Mississippi law that prohibits nearly all abortions after the fifteenth week of pregnancy and overruled the holding in Roe v. Wade. Among the many arguments raised in Dobbs in an attempt to overturn Roe, the State of Mississippi argued that due to “the march of progress” in women’s role in society, abortion rights are no longer necessary for women to participate equally in economic life. It has also been argued that there is no empirical support to the relationship between abortion rights and women’s economic success in society. …

Socio-Economic Considerations Of Living Modified Organisms And Impacts On Trade: Evolution Of Environmental Disputes At The World Trade Organization, Leonardo Munhoz

Dissertations & Theses

The Convention on Biological Diversity (CBD) is the most important international treaty concerning the conservation of biodiversity and the Cartagena Protocol is a specific instrument to regulate biosafety measures for Living Modified Organisms ("LMOs"). In this Protocol, apart from mandatory environmental and health risk assessments, the Parties can also voluntarily adopt socio and economic considerations ("SECs") arising from LMOs, as stated in article 26.

However, the definition of SECs is still under negotiation, therefore it does not currently have a definite concept and meaning. Also, the last Conference of the Parties proposed to expand SECs by adding extra cultural, traditional, …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Amicus Curiae Brief State Of Utah Et. Al. V Walsh Et. Al., Ethan Halman Gonzalez

Honors Program: Senior Projects (Public)

In accordance with Rule 29 of the Federal Rules of Appellate Procedure, this amicus curiae is submitted in the defense of Walsh and the Department of Labor in releasing the prudence and loyalty in selecting plan investments and exercising shareholder rights rule in November of 2022. These brief mainly focuses on the arbitrary and capricious standard, the major questions doctrine, and the legal standing the Department of Labor has to issue rules that apply to the Employee Retirement Income Security Act of 1974.

The Long Shadow Of Inevitable Disclosure, Stacey Dogan, Felicity Slater

Faculty Scholarship

A growing body of evidence has highlighted the human and economic costs associated with contractual restrictions on employee mobility. News accounts describe abusive use of non-compete clauses to prevent low wage workers from seeking better options. Economists, meanwhile, have demonstrated that innovation and economic dynamism may suffer when employers can easily prevent their employees from changing jobs. While state legislatures have attempted to address these concerns by restricting employers' use of non-compete agreements, the Federal Trade Commission recently announced a plan to prohibit them altogether. As policymakers focus attention on contractual limits on employment mobility, however, a more insidious threat …

Inflation, Market Failures, And Algorithms, Rory Van Loo

Faculty Scholarship

Inflation is a problem of tremendous scale. But the leading response to inflation-raising interest rates-also poses economic risks. Raising interest rates rapidly may increase unemployment and heighten the chance of recession. This Article argues that there is a better way to think about antiinflation policy. Rather than defaulting to interest rate hikes that harm markets, policymakers should prioritize laws that lower prices while improving markets. Most importantly, there is evidence that businesses have raised prices by colluding with one another, exploiting consumers' behavioral and informational limits, and lobbying for protectionist laws that block competition. Artificial intelligence pricing algorithms and dark …

The Millennial Corporation: Strong Stakeholders, Weak Managers, Michal Barzuza, Quinn Curtis, David H. Webber

Faculty Scholarship

In a prior paper, Shareholder Value(s): Index Fund ESG Activism and The New Millennial Corporate Governance, we argued that the index funds’ sudden shift towards socially-responsible investment, after decades of ignoring or opposing it, was driven by the competition to manage growing Millennial wealth. In our view, the main contribution of that paper was identifying sharp differences between Millennials and prior generations over investment, consumption, and employment. It has now become clear that this contribution has implications far beyond index-fund environmental, social and governance (“ESG”) activism and is in fact completely transforming the corporate world, marking a fundamental shift in …

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

Faculty Works

The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.

Commodified Inequality: Racialized Harm To Children And Families In The Injustice Enterprise, Daniel L. Hatcher

All Faculty Scholarship

This article addresses the systemic racialized harm of a vast injustice enterprise, with a focus on the symbiotic operations of agencies and justice systems monetizing vulnerable children and families, including the impact of contractual revenue schemes uncovered in my new book, Injustice, Inc. Our foundational justice systems are permeated by a history of racial injustice, and that history reverberates into factory-like operations that churn children and the poor into revenue. The revenue-generating mechanisms used by juvenile and family courts, prosecutors, probation departments, police, sheriffs, and detention facilities all draw the concerning historical connection—interlinked with the practices of child and …

Climate Services: The Business Of Physical Risk, Madison Condon

Faculty Scholarship

A growing number of investors, insurers, financial services providers, and nonprofits rely on information about localized physical climate risks, like floods, hurricanes, and wildfires. The outcomes of these risk projections have significant consequences in the economy, including allocating investment capital, impacting housing prices and demographic shifts, and prioritizing adaptation infrastructure projects. The climate risk information available to individual citizens and municipalities, however, is limited and expensive to access. Further, many providers of climate services use black box models that make overseeing the scientific rigor of their methodologies impossible— a concern given scientific critiques that many may be obfuscating the uncertainty …

Manajemen Dan Mitigasi Risiko Lender Peer-To-Peer Lending Pasca Diundangkan Pojk 10/2022, Jerry Shalmont, Grace Iskandar Darmawan, Dora Dominica

Jurnal Hukum & Pembangunan

Peer to Peer Lending (P2P Lending) has become one of the financing options for both individuals and businesses. The use of P2P Lending during the COVID-19 pandemic has significantly increased from both borrowers and lenders. Recently, the issue of P2P Lending that is often discussed pertains to borrowers, but the lenders seem to be forgotten and not receiving special attention, even though lenders also require protection because they can at least protect themselves from the unwanted risk of default. This research is relevant because it is expected to provide information related to the management of P2P Lending companies and how …

What Would Surrey Say? The Long Reach Of Stanley S. Surrey, Reuven S. Avi-Yonah, Nir Fishbien

Law & Economics Working Papers

This essay examines the extent of Surrey’s influence on developments in tax law after his death. It argues that his ideas clearly impacted the tax reform of 1986, but can even be seen in later enactments like the Tax Cuts and Jobs Act of 2017 and contemporary developments in international taxation. This in turn enables us to get a clearer perspective on what Surrey aimed to achieve and what the goals of these later developments are.

After Pillar One, Reuven S. Avi-Yonah

Law & Economics Working Papers

Pillar One is unlikely to succeed for three reasons. First, it requires an MTC to be implemented because Amount A requires overriding Articles 5 (Permanent Establishment, PE), 7 (Business Profits) and 9 (Associated Enterprises) of every tax treaty to abolish the PE and Arm’s Length Principle (ALP) limits enshrined therein. But negotiating an MTC is hard, especially when over 100 countries are involved and there are fundamental disagreements among them.

Second, because Pillar One (despite its October 2021 expansion) is still aimed primarily at taxing the US digital giants (Big Tech), it is hard to envisage it being implemented without …

The Historical Origins Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert

Law & Economics Working Papers

This paper will survey the efforts to create a multilateral tax convention (MTC) from the beginnings of the international tax regime to the present day. The paper’s main contribution is to provide a historical analysis of the (failed) efforts to create a MTC from the beginnings of the ITR until the League of Nations (as contained in Part 1 to this paper). Part 2 of the paper serves to provide a brief modern context to the historical analysis from Part 1, covering why the multilateral instrument (MLI) that was included in BEPS 1.0 is not a true MTC, and secondly …

Love Hertz: Corporate Groups And Insolvency Forum Selection, John A. E. Pottow

Law & Economics Working Papers

The Hertz bankruptcy got a lot of attention, including for its bizarre equity trading. A less heralded but more significant legal aspect of that insolvency, however, was its complex interaction of cross-border insolvency proceedings.

This article discusses the “centripetal” and “centrifugal” forces in the Hertz case that counselled a U.S.-based centralized solution for an international enterprise comprising over 10,000 branches centripetally but also accommodated centrifugal European resistance to subject directors to the consequences of filing their entities in a foreign jurisdiction. This not uncommon constellation of incentives required not a COMI shift but what this article terms a jurisdiction shift …

A Response To Professor Choi’S Beyond Purposivism In Tax Law, Reuven S. Avi-Yonah

Law & Economics Working Papers

This response to Professor Choi’s excellent article questions whether the proposals made by the article can solve the tax shelter problem, and argues that a better response is to bolster purposivism with a statutory general anti-abuse rule (GAAR).

Daca's Tax Benefits Highlight The Need For Broader Immigration Reform, Jacqueline Lainez Flanagan

Journal Articles

America’s aging population and declining birth rates are negatively affecting the nation’s Social Security and Medicare safety nets, reducing tax revenue, and weakening the broader economy.1 Meanwhile, immigration is increasing workforce participation by expanding the number of young adults in the United States.2 Despite political setbacks, the Deferred Action for Childhood Arrivals (DACA) program exemplifies the economic and tax benefits of immigration, providing data and the impetus for a better way forward. Although not all DACA-eligible youth have registered for it, it is estimated that in 2017 alone, more than $2.2 billion in federal taxes were paid by DACA-eligible youth …

Stop The Games: How Broker-Dealer Gamification Affronts Antitrust, Tanner Dowdy

University of Cincinnati Law Review

No abstract provided.

Markets As Legal Constructions, Gregory Brazeal

University of Cincinnati Law Review

Since at least the late 1970s, popular political and economic debates in the United States have often been framed in terms of a choice between “government” and “the market.” In addition, debates have often assumed that “the market” is associated with freedom while government “regulation” or “interference in the market” constitutes oppression.

This article begins by making the familiar observation that the distinction between “government” and “the market,” at least when taken at face value, makes no sense. Even idealized laissez-faire markets are creatures of the state and its market-structuring laws, including criminal law and the laws of property, contracts, …

Optional Price Discrimination, Lee Anne Fennell

Texas A&M Law Review

Price discrimination generates considerable angst. As merchants develop ever-more-powerful mechanisms for gathering and compiling information about consumers, the specter of fully personalized pricing seems to loom as an ominous threat. Yet a parallel phenomenon quietly coexists with all this distress over tailored prices: models that encourage people to voluntarily contribute, typically in varying amounts, the sums necessary to cover the fixed costs of producing particular goods and services. This Article proposes enabling customers to opt into price discrimination in a more structured way across a broader range of markets. Optional price differentiation can make markets fairer and more inclusive by …

A Modern Defense Of Simple Rules For A Complex World, Richard A. Epstein

Texas A&M Law Review

My 1995 book Simple Rules for a Complex World articulated a general proposition that, in most situations, simple legal rules perform better in two key dimensions: (1) they are simpler to interpret and enforce, and (2) they generate efficient incentives on the parties to whom they apply. I then applied that view to matters of general legal theory, to matters of environmental law, and to disputes over labor. These principles apply to all forms of legal regulation, but in this Article, I shall limit my analysis to the five articles in this Collection. These are by Richard Revesz on global …

When Does A Non-Fungible Token (Nft) Become A Security?, Brian Elzweig, Lawrence J. Trautman

Georgia State University Law Review

Non-fungible tokens (NFTs) gained prominence in the news cycle during March 2021 when $69 million was paid in a cryptocurrency known as Ether for a unique digital art piece titled Everydays: The First 5000 Days. Regulating NFTs is complicated because the technology encompasses varied applications. Therefore, it is the particular use of a given NFT that will determine its appropriate regulatory regime. For example, NFTs may take the form of collectibles, data associated with a physical item, financial instruments, or permanent records associated with a person, such as marriage licenses or property deeds. Just like digital art in the form …

Foreign Direct Investment (Fdi) Role On The Economic Growth In The United Arab Emirates, Dr.Abdullah Abdelkrim Hassan

Faculty Peer-Reviewed Papers | بحوث هيئة التدريس المحكمة

Due to the recent deterioration of the global economy, economic growth (EG) has become a worldwide interest; thus, scholars must focus on this issue. Hence, this study examines the effect of FDI on the EG of the United Arab Emirates (UAE). The researchers also employed inflation, employment rate, exchange rate, and industrialization as control variables. Using the secondary data gathering approach, the researchers used the World Development Indicators (WDI) database to extract data from 1986 to 2021. The researchers additionally examine the association between variables using the Non-linear Autoregressive Distributed Lag (NARDL) technique. Results indicated that FDI, inflation, employment rate, …

The Limits Of Portfolio Primacy, Roberto Tallarita,

Vanderbilt Law Review

According to the “portfolio primacy” theory, large asset managers, and in particular large index funds, can and will undertake the role of “climate stewards” and will push corporations to reduce their carbon footprint. This theory is based on the view that index fund portfolios mirror the entire market and therefore have strong financial incentives to reduce market-wide threats, such as climate change.

But how much can we rely on portfolio primacy to mitigate the effects of climate change? In this Article, I provide a conceptual and empirical assessment of the potential impact of portfolio primacy on climate change mitigation by …

Conflict Of Laws? Tensions Between Antitrust And Labor Law, Matthew Dimick

Journal Articles

Not long ago, economists denied the existence of monopsony in labor markets. Today, scholars are talking about using antitrust law to counter employer wage-setting power. While concerns about inequality, stagnant wages, and excessive firm power are certainly to be welcomed, this sudden about-face in theory, evidence, and policy runs the risk of overlooking some important concerns. The purpose of this Essay is to address these concerns and, more critically, to discuss some tensions between antitrust and labor law, a more traditional method for regulating labor markets. Part I addresses a question raised in the very recent literature, about why antitrust …