Law and Economics Commons^™

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

All Faculty Scholarship

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

The Grip Of Nationalism On Corporate Law, Mariana Pargendler

Indiana Law Journal

Part I provides a brief overview of the relationship between corporate law and nationalism and demonstrates their interaction in the historical experiences of several key jurisdictions. These vignettes are merely illustrative, but they indicate how deep the link between nationalism and corporate law can be. Part II summarizes the evidence on the economic effects of foreign corporate control, showing that it is ultimately inconclusive. Part III explains why corporate law can be an attractive instrument to accomplish nationalist objectives and explores the possible regulatory responses to this phenomenon. Part IV analyzes the implications of these findings for future developments in …

Speech Inequality After Janus V. Afscme, Charlotte Garden

Indiana Law Journal

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.

The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Collected Lectures And Talks On Corporate Law, Legal Theory, History, Finance, And Governance, William W. Bratton

Seattle University Law Review

A collection of eighteen speeches and lectures, from 2003 to 2018, discussing and expanding on the writings and theories of Adolf Berle and Gardiner Means.

Democracy In America At Work: The History Of Labor’S Vote In Corporate Governance, Ewan Mcgaughey

Seattle University Law Review

Can there be democracy in America at work? The historical division between democracy in politics and hierarchy in the economy is under strain. Hierarchical interests in the economy are shifting their model of power into politics, and yet a commitment to revive the law is resurgent. Central examples are the proposed Accountable Capitalism Act, Reward Work Act, Workplace Democracy Acts, and Employees’ Pension Security Acts. They would create a right for employees to elect 40% of directors on $1 billion company boards, a right for employees to elect one-third of directors on other listed company boards and require one-half employee …

Adapting To $15: As The Minimum Wage Approaches $15 In Nyc, Business Owners Are Finding Ways To Make It Work, Alexandra Semenova, Sharif Paget

Capstones

This project examines the impact of minimum wage increases across major industries in New York City and State and concludes they have been manageable and even fueled broader economic growth. Since the incremental wage hikes were first signed into law in 2015, data and anecdotal evidence has shown business owners have been able to make it work and many of critics' concerns that the higher labor costs would lead to disemployment have been misplaced. The story provides an in-depth analysis of how restaurant and food establishments, health care and retail employers have adapted to higher labor costs by innovating their …

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Friendly Precedent, Anthony Niblett, Albert H. Yoon

William & Mary Law Review

This Article explores which legal precedents judges choose to support their decisions.When describing the legal landscape in a written opinion, which precedent do judges gravitate toward? We examine the idea that judges are more likely to cite “friendly” precedent. A friendly precedent, here, is one that was delivered by Supreme Court Justices who have similar political preferences to the lower court judges delivering the opinion. In this Article, we test whether a federal Court of Appeals panel is more likely to engage with binding Supreme Court precedent when the political flavor of that precedent is aligned with the political composition …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Articles

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

The Politics Of Fiscal Austerity: Democracies And Foresight, Paul L. Posner

Indiana Journal of Global Legal Studies

Daunting fiscal policy challenges face democratic systems throughout the world. Fiscal austerity in the wake of the Great Recession prompted nations in the Organisation for Economic Co-operation and Development (OECD) to institute major spending cuts and tax increases, increases that caused political and social fallout for years to come. While economies and budgets have improved in the past several years, significant fiscal adjustments lie ahead due to aging populations and the seemingly inexorable growth of health care costs. Faced with larger cohorts of retirees and fewer workers, nations will have to come to grips with a fiscal reality of higher …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

A Pink Cadillac, An Iq Of 63, And A Fourteen-Year-Old From South Carolina: Why I Can No Longer Support The Death Penalty, Mark Earley Sr.

University of Richmond Law Review

No abstract provided.

Antitrust, Competition Policy, An Inequality, Jonathan Baker, Steven Salop

Articles in Law Reviews & Other Academic Journals

Economic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust policy …

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

Fearless Friday: Gettysburg Anti-Capitalist Collective, Christina L. Bassler

SURGE

The Gettysburg Anti-Capitalist Collective, also known as GACC, is a recent yet active addition to the campus community. Through their participation in debates, weekly meetings, and organization of events (most notably Wednesday night’s concert featuring political activists Evan Greer and Anne Feeney), GACC provides a forum for discussing and learning about leftist politics. On a campus that many would describe as highly conservative, GACC and its members are nothing short of fearless. [excerpt]

On The Public-Law Character Of Competition Law: A Lesson Of Asian Capitalism, Michael Dowdle

Michael Dowdle

This article argues that competition law is best seen as a form of public law – ‘the law that governs the governing of the state – and not as simply a form of private market regulation. It uses the experiences of ‘Asian capitalism’ to show how capitalist economies are in fact much more variegated than the orthodox model of competition law presumes, and that this variegated character demands a form of regulation that is innately political rather than simply technical. Orthodox competition regimes address this complexity by segregating non-standard capitalisms into alternative doctrinal jurisprudences, but this renders conceptually invisible the …

The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck

Articles in Law Reviews & Other Academic Journals

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal …

Turf Wars: Territoriality And The Allocation Of Sales And Use Taxes In California, Kevin Schmitt

Kevin Schmitt

Sales and use tax revenue provides an important source of funding for California’s local governments, particularly its cities. Under the Bradley-Burns Uniform Local Sales and Use Tax Law, local governments may enact sales and use tax ordinances and contract with the state to manage collection and distribution. The current allocation system, known as the situs-based system, provides for distribution to local government based on the physical location of the retailer. Although such a system has logical appeal, in practice it has proven highly problematic, promoting unproductive competition among local governments for scarce revenue.

Reform of the situs-based allocation process has …

Symbolic Corporate Governance Politics, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

How are we to understand the persistent gap between rhetoric and reality that characterizes so much of corporate governance politics? In this Article, we show that the rhetoric around a variety of high profile corporate governance controversies (including shareholder proposals asking boards to redeem poison pills, proxy access, majority voting in director elections, and shareholder proposals to remove supermajority voting requirements) cannot be justified by the material interests at stake. At the same time, shareholder activists are oddly reluctant to pursue issues that may have a more material impact, such as anti-pill charter provisions or mandatory bylaw amendments. We consider …

What Consensus? Ideology, Politics And Elections Still Matter, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article, which was prepared for an ABA Antitrust Section Panel, discusses the role of ideology and politics in antitrust enforcement and the impact of elections in the last twenty year on enforcement and policy at the federal antitrust agencies. The article explains the differences in antitrust ideologies and their impact on policy preferences. The article then uses a database of civil non-merger complaints by the DOJ and FTC over the last three Presidential administrations to analyze changes in the number, type and other characteristics of antitrust enforcement. It also discusses change in vertical merger enforcement and other antirust policies …

The Separation Of Powers, Constitutionalism And Governance In Africa: The Case Of Modern Cameroon, John Mukum Mbaku

JOHN MUKUM MBAKU

The Separation of Powers, Constitutionalism and Governance in Africa: The Case of Modern Cameroon

John Mukum Mbaku, Esq.

Abstract

Countries incorporate the principle of the separation of powers in their constitutions in an effort to meet several goals, the most important of which is to minimize government-induced tyranny. Specifically, countries that make this principle part of their constitutional practice intend to limit public servants by national laws and institutions, enhance government accountability, minimize opportunistic behaviors by civil servants and politicians, provide for checks and balances, and generally improve government efficiency. Cameroon, like many other African countries that transitioned to democratic …