Law and Economics Commons^™

A Human Enablement Theory Of Copyright, Akshat Agrawal

Indian Journal of Law and Technology

Copyright policy, designed to protect creators and disseminators from market imperatives, has ironically deepened their market dependency. This transformation stems from two critical theoretical errors: first, the “incentives”/“reward for labour” story that mistakes protection from market pressures for market encouragement; second, market fundamentalism that treats exclusionary rights as natural and as the source of “liberty”. These misconceptions, reinforced by fallacies about pre-social creativity and physicalism, have transformed copyright from an enabler in a market society into one that commodifies creative expression itself, intensifying rather than ameliorating the economic vulnerability of cultural producers.

This theoretical misunderstanding has produced three interlocking harmful …

Reporting Materiality Under The Sec Cybersecurity Disclosure Rules: How Corporate Boards Balance Duty And Risk For Cyber Threats And Incidents, Deborah Slattery-Pereira

American University Business Law Review

The Security Exchange Commission’s (SEC) cybersecurity rules require that public companies disclose a material cyber threat or incident and the impact of the incident on the company’s business Corporate boards must disclose any cyber-related information that would affect a reasonable shareholder’s investment decisions. These rules delegate to the corporate board and management the decision of which cybersecurity events qualify as material to investors. Directors and officers must also decide when and how to disclose to the SEC, and what information to report.

The SEC Cybersecurity Rules increase compliance and litigation costs for public companies, as shareholders can use this information …

Cloudy Oversight: How Administrative Conflict Over International Airline Alliances’ Antitrust Immunity Harms Consumers Of Commercial Air Transportation., Hamin Jeong

American University Business Law Review

Antitrust law governs and guides how regulatory agencies should scrutinize unfair, monopolistic corporate behavior. However, when several different agencies are tasked with enforcing the same legal principles, different interpretations of such principles inevitably arise.

 The U.S. Department of Justice (DOJ) acts as the main body that enforces antitrust actions in the domestic airline industry, but there is an exception to the general rule. Congress delegated the U.S. Department of Transportation (DOT) the authority to grant antitrust immunity to international airline alliances, which form when domestic and foreign airlines partner to increase flight services between their respective nations.

However, as codified …

Ai In The Vault: Ai Act's Impact On Financial Regulation, Maria Lucia Passador

Loyola University Chicago Law Journal

The AI Act, a pioneering legislative framework, classifies AI systems based on their risk levels and mandates stringent requirements for high risk systems to ensure transparency, accountability, and protection of fundamental rights. This Article further addresses the critical intersection of AI technology and prudential supervision, highlighting the significant roles of the AI Office, and the AI Board in the governance and oversight of AI applications in finance.

Despite existing literature focusing on the integration of AI in banking supervision and the associated risks, gaps remain in understanding how these regulatory frameworks can effectively oversee AI's transformative impact on financial markets. …

Out Of Sight Is Out Of Mind? Experimentally Testing A Gradually Materializing Public Bad, Alexander Egberts, Christoph Engel, Joshua Fairfield

Scholarly Articles

Many social ills can be modeled as a public bad. In such scenarios, private benefit is often immediate, while the public damage takes some time to materialize. In this experiment, we investigate the behavioral effects caused by such delays in the realization of collective harm. By manipulating the weight with which the damages caused by group contributions are carried over to the next round, we alter the number of periods required for the social damage to unfold fully. We keep constant the economic consequences of contributions between treatments (by introducing a multiplier for the damage) and between periods (by deducting …

Toys As Evidence, Randall K. Johnson

Faculty Works

This Essay asks and answers a single question, which was posed during a recent symposium at the National Museum of Toys & Miniatures. Could the study of revealed preferences, which is the idea that observed behaviors are the best indicator of one’s beliefs, improve our collective understanding about what constitutes unlawful discrimination in certain U.S. markets? A possible answer, which is informed by the Brown v. Board of Education decision, is the study of revealed preferences may improve our collective understanding for three reasons.

One reason is the study of revealed preferences provides a window into how some producers and …

Control Capture And Competition, D. Daniel Sokol, Robert J. Rhee

UF Law Faculty Publications

This Essay identifies an emerging problem in antitrust law and policy, particularly in the technology industry. Antitrust doctrine has historically revolved around internal control of firm, i.e., equity acquisition. It focuses on the capture of internal control. Mergers and acquisitions trigger regulatory review. In these deals, the locus of anticompetitive behavior lies in ownership and internal governance. However, one can capture control through various ways. An emerging problem in antitrust law is external exertion of control through contract. Competition can be stifled, and thus price, non-price, and innovation factors can be controlled or manipulated through the levers of control existing …

Serendipity And Self-Regulation: The Evolution Of Cryptocurrency-Based Exchange-Traded Products, Onnig H. Dombalagian

American University Business Law Review

Cryptocurrency enthusiasts rejoiced last year when the Securities and Exchange Commission (SEC) approved the listing of bitcoin-based and ether-based exchange-traded products (ETPs). For over a decade, cryptocurrency entrepreneurs have sought to trade cryptocurrency products on traditional securities exchanges.  Listing bitcoin and ether ETPs gave retail investors an easily accessible, transparent, and perhaps, more cost-efficient means of investing in cryptocurrencies while reducing the credit and custodial risks of dealing with unregistered digital asset exchanges or digital asset intermediaries. The listing of cryptocurrency ETPs may also represent a substantial step toward completing the marketplace for financial transactions in bitcoin and ether.

 There …

Re-Examining U.S. Bailouts In The Digital Era: Moral Hazard And Adverse Consequences, Joel Slawotsky

American University Business Law Review

Financial institutional bailouts have become the new normal in recent decades. From the savings and loan crisis, to the sub-prime, to SVB and Signature, the U.S. government and regulators have decided that the failure to protect depositors and investors could lead to bank runs, a destabilized banking sector, and ultimately economic turmoil inflicting tremendous monetary and social costs on citizens. However, the mainstreaming of bailouts has led to moral hazard, i.e., the expectation among all stakeholders including financial institutions, investors, creditors, and regulators, that a government rescue is inevitable. The problem of moral hazard is the creation of incentives to …

The Social Promise Of Hybrid Entities, Frederick M. Spight Jr.

American University Business Law Review

Many Historically Black Colleges and Universities (HBCUs) are struggling to stay afloat. These historic, and historically underfunded, institutions suffer from a chronic shortage of resources, leading to the notable closures of schools, like Concordia College. Some critics question the modern place of the HBCU as a relic of a bygone era. This article argues, however, that HBCUs are worth sustaining and provides the legal tool to do so: the hybrid entity. 

Hybrid entities arose from the social enterprise movement, which sought to harness the power of both nonprofit and for-profit organizations. Operating under the philosophy of “doing well, while doing …

Incentivized Delegation In Corporate Criminal Investigations: State Action, Unconstitutional Conditions, And Fifth Amendment Erosion., Ying Zhou

American University Business Law Review

This Article identifies and critiques “incentivized delegation,” an enforcement regime in which the Department of Justice (DOJ) conditions prosecutorial leniency on corporations’ completion of specified, prosecution-oriented, internal investigations of employee misconduct. While courts readily find state action when the government formally delegates investigative functions, they have not squarely addressed whether corporate investigations undertaken to secure prosecutorial leniency—without explicit governmental direction—should likewise trigger state-action scrutiny. United States v. Coburn illustrates the blind spot: by insisting that state action requires overt governmental direction and control, the decision exposes a fundamental failure to appreciate how the government can embed investigative mandates within the …

Symmetry, Presumptions, And The Judges Design, Murat C. Mungan

Faculty Scholarship

An instrumental variables approach called ‘the judges design’ used frequently in social sciences relies on an assumption called ‘average monotonicity’. This assumption pertains to how different judges’ (or other classifiers’) decision making processes relate to each other. Violations of it are hard to detect, which raises the importance of it being supported by a plausible theory. Decisions of judges who solve Bayesian decision problems violate average monotonicity as long as the signals they process are symmetric and they do not possess strong presumptions. This result is extended to cases where judge presumptions are symmetrically distributed and may include strong presumptions. …

Merger Remedies Unbound, Dhruv Aggarwal, Albert H. Choi, Geeyoung Min

Articles

How should foundational contract law doctrines apply to corporate mergers? This Article argues that recent changes in Delaware law grant parties expansive contractual freedom to define their preferred remedies in merger agreements, untethered from the limits imposed by traditional contract law. A new provision in the Delaware corporate code, or the Delaware General Corporation Law (DGCL), permits penalty clauses in merger agreements, notwithstanding the traditional “anti-penalty doctrine” that forbids punitive liquidated damages in contracts. Delaware courts have also shown deference to specific performance provisions, treating them as presumptively enforceable commitments instead of retaining their traditional judicial discretion over the choice …

A Strategic Approach To “E”Sg Reporting, Taylor Nchako

Lewis & Clark Law Review

Environmental, Social, and Governance (ESG) factors have emerged as an important investment tool for the financial sector to address climate change. While the federal government has abandoned ESG disclosure, U.S. firms still face reporting obligations domestically and abroad. States across the country have proposed or passed two types of disclosure laws: greenhouse gas emissions disclosure and climate risk disclosure. These state-level efforts mirror actions in the European Union, Canada, and other jurisdictions in which U.S. firms operate.

As ESG disclosure standards are adopted in jurisdictions around the world, these standards are undergoing various advancements, reductions, and contestations. These shifts in …

Never Cool Enough: Legal And Policy Challenges To Keeping Data Centers And Communities Empowered In A Warming World, Cristina M. Banahan, Diana B. Wilkinson

Lewis & Clark Law Review

In a rapidly evolving world, artificial intelligence (AI) and cryptocurrency are two technologies at the forefront of the future. Although these developments promise many potential societal benefits and revenue, they come with a price. The data processing required to operate these new technologies demands a large amount of energy, using water to cool the systems and enable them to run without overheating. With such high water and energy demands, the benefits from these technological advancements come at a steep environmental cost. Despite the negative environmental impacts of these data centers, the Trump Administration continues to roll back environmental protections. The …

Purpose-Driven Compliance, Veronica Root Martinez

Faculty Scholarship

Whether it is a small brokerage firm in Ann Arbor, Michigan, a private university in Cambridge, Massachusetts, or a multinational conglomerate head-quartered in New York City, organizations understand that they are required to fulfill a range of compliance obligations. Compliance programs today tend to have two important characteristics in common. First, the notion that perfect compliance is an impossible goal is a key component of the understandings and expectations of many firms’ compliance programs. Second, organizations have almost uniformly adopted compliance programs in areas where enforcement activity has been significant—like in the areas of antibribery and anticorruption, anti-money laundering, antitrust, …

The Impact Of The Filibuster On The Ideological Composition Of The Judiciary, James Cullers

CMC Senior Theses

This paper examines whether the 2013 Senate filibuster reform–the so-called "nuclear option"–changed the ideological composition of federal judicial nominees and whether that change translated into different confirmation outcomes. Using ideology scores from the Database on Ideology, Money in Politics, and Elections (DIME) matched to a dataset of all federal judicial nominees from 2000 to 2024, we separate the judicial selection process into two stages: presidential nomination and Senate confirmation. At the nomination stage, we find that post-2013 nominees were approximately 71% more likely to be ideologically extreme by pre-reform standards, a large and statistically significant shift consistent with presidents responding …

Rethinking Legal Models For Aligning U.S.-African Trade And The Afcfta, Katrin Kuhlmann

Georgetown Law Faculty Publications and Other Works

The U.S.-African trade relationship has become increasingly volatile and conditional, with significant implications for supply chains, trade corridors, and regional and global markets. This relationship has historically been based on a unilateral, preferential legal approach through a trade preference programme – the African Growth and Opportunity Act (AGOA) – under which individual countries petition for eligibility to receive duty-free treatment. AGOA expired in September 2025 in the midst of U.S. tariffs, but in early 2026 the programme was retroactively reauthorised through December 2026, with further application subject to “modernisation” and alignment with the “America First” policy. While many see reauthorisation …

1981, Carliss N. Chatman

Faculty Journal Articles and Book Chapters

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in …

The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte

Touro Law Review

No abstract provided.