Law and Economics Commons^™

International Investment Law And Sustainable Development - Friend Or Foe?, Barnali Choudhury

All Papers

Foreign direct investment (FDI) is widely regarded as a critical mechanism for achieving the Sustainable Development Goals (SDGs), yet the legal framework governing such investment often operates in tension with sustainability imperatives. This conference paper examines the complex relationship between international investment agreements (IIAs) and sustainable development and questions whether IIAs serve as instruments that promote or impede states’ pursuit of sustainability objectives. It argues that the structure and interpretation of IIAs, characterized by broad definitions and expansively worded standards of treatment as well as the use of investor–state dispute settlement (ISDS), have frequently constrained states’ regulatory autonomy, particularly in …

That Old College Try: Judge-Made Monopolies In The Market For Affinity Goods, John A. Rothchild

Texas A&M Law Review

There is a large market for goods such as t-shirts, coffee mugs, posters, and baseball caps that are emblazoned with the names and symbols of culturally prominent institutions—universities, athletic teams, musical bands, automobile brands. We buy, wear, and display those goods to express our affinity with the referenced institution. The owners of the trade symbols that adorn these items, which this Article refers to as “affinity goods,” jealously guard what they claim is their sole right, under the trademark laws, to authorize the use of their symbols as decoration. They have brought numerous lawsuits aimed at establishing and enforcing this …

Setting International Technical Standards To Shape Digital Trade Policy: Approaches, Challenges, And Opportunities For Developing Countries, Craig Atkinson, Hanane Becha

Centre for Digital Law

Digital trade, the “intentional application of digital technologies at any stage of the trade process” (DiCaprio, 2024, p. 1), is reshaping patterns of economic growth1 and development (International Monetary Fund [IMF] et al., 2023a). As its basis, digital trade depends on internationally agreed-upon “digital technical standards”: rules and guidelines that ensure digital technologies can work together (i.e., interoperability) and be used widely (i.e., scalability) (Bergsen et al., 2022). These standards support how information and communication technologies (ICTs) are designed, interact, and are adopted across borders. Without such technical standards, digital trade would not be possible.

Competition, Comity, And Confusion: Reconciling The Ftaia’S Import Exclusion With Its Direct Effects Provision, Elliot Lam

Fordham Law Review

The debate surrounding the Sherman Act’s extraterritorial scope represents a tension between two competing objectives: protecting the U.S. economy from foreign anticompetitive conduct on one hand and respecting the sovereign authority of other nation-states on the other. Applying U.S. law abroad risks undermining sovereign authority by regulating foreign economies, though such regulation appears necessary in some cases to protect U.S. consumers.

Congress’s attempt to square these objectives through enacting the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) failed to settle the matter. The statute left courts with two new questions: how to distinguish “import” from “nonimport” commerce, and how …

Trips And Its Futures, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was adopted on 15 April 1994, along with the estab-lishment of the World Trade Organization (WTO). With the WTO’s recent celebration of its thirtieth anniversary, it is high time we explore what the future will hold for this agreement. This chapter begins by revisiting the past to examine whether the TRIPS Agreement would be adopted if it were negotiated today. The chapter then discusses whether WTO members will undertake a major overhaul of this agreement in the future. Taking note of the fast-evolving international norm-setting environment and …

Assembly-Line Public Defense, David S. Abrams, Priyanka Goonetilleke

Faculty Scholarship

Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This Article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from their initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of …

A New View Of Formal Equality And A Case For Predistribution, Alex Raskolnikov

Faculty Scholarship

A long-held egalitarian view is that formal equality — the absence of formal legal distinctions based on the material resources of individuals — is regressive. If legal rules are the same for the rich and the poor, the rich benefit and the poor suffer. This Essay argues that this view is mistaken. Far from being synonymous with laissez-faire, a commitment to formal equality provides a counterweight to the key neoliberal maxim that regulation of the market economy should focus on efficiency alone. Moreover, a new view of formal equality offered here reveals a key advantage of predistribution over redistribution: Explicit …

Living Property, Joseph William Singer

Seattle University Law Review

The Supreme Court has increasingly defined property rights that are per se exempt from regulation in the absence of compensation, most recently in Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023). The Court claims that it can identify property rights that are categorically protected from regulation by reference to history, tradition, and precedent. Yet this approach is oddly ahistorical; it is inconsistent with the fact that property law changed dramatically over U.S. history, as well as varying tremendously among the states. It is also inconsistent with the historical context of the Founding era. At that time, …

Table Of Contents

Seattle University Law Review

Table of Contents

The Roots Of Credit Inequality, Andrea Freeman

Seattle University Law Review

Debt oppression began before the United States became a country. Settlers enslaved Africans and Indigenous people, treating them as property that they could buy and sell for their economic and personal benefit. When enslavement became illegal, new economic systems and laws that included sharecropping, Black Codes, and Jim Crow kept Black people in servitude. Laws that prohibited enslaved people from owning property or selling goods to white people evolved into restrictions on Black people’s occupations and market participation, both formal and informal. When Black entrepreneurs overcame these obstacles and built wealth within Black business enclaves, white people enforced their racist …

“A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Seattle University Law Review

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Mandating Fluoride: A Constitutional Exercise Of Police Power, Anita Jahangiri

Seattle University Law Review

This Note addresses the ongoing debate over fluoridation: the regulation of fluoride levels in public water systems. Extensive research indicates fluoridation, when regulated at the recommended concentration, is both safe and highly effective in preventing dental caries. Better known as cavities, dental caries is a preventable yet widespread health issue that disproportionately affects low-income populations. Reducing dental health disparities among economic classes is a pressing public health issue. Fluoridation is not merely a policy option, but a critical, proven tool to address such disparities and uphold the collective welfare of Washingtonians. This Note focuses on fluoridation as a public health …

Neurodiversity In The Courtroom: Expanding Jury Service Accessibility Beyond Physical Disability, Samantha L. Mabe

Seattle University Law Review

The Americans with Disabilities Act has required equal access to jury service for decades; however, efforts to accommodate jurors with disabilities have been slow to develop beyond some minor accommodations for physical disabilities. While neurodivergent people frequently struggle to navigate a world catered toward neurotypical people, jury service remains inaccessible for many neurodivergent people who need accommodations to attend trial and engage in jury deliberations. If courts and advocates do not consider how to develop accommodations to secure the service of neurodivergent jurors, they will miss out on the unique skillsets that neurodivergent people can bring to resolving disputes.

Disabled …

Redefining Section 230 Immunity, Lucas Dini

Seattle University Law Review

Section 230 of the Communications Decency Act has provided broad immunity to online platforms for third-party content which was the foundation for the internet's growth. However, the rise in the use of artificial intelligence (AI) to produce algorithms to curate content to users of online services has blurred the line between being a passive host of third party content and active editorial control. This Note examines the legal, policy, and constitutional implications of applying Section 230 immunity to platforms that use AI to curate and promote third-party content. This analysis argues that algorithmic promotion of third-party content constitutes a platform's …

Overcrowding The System: Rethinking Juvenile Justice In Washington State, Mckenna White

Seattle University Law Review

The recent crisis at Green Hill School highlights the detrimental consequences of severe overcrowding in Washington State’s Juvenile Rehabilitation system—a problem exacerbated by the implementation of the JR to 25 legislation. This Note argues that the juvenile rehabilitation system, which is currently struggling to manage a wide age range of offenders, necessitates a fundamental rethinking of juvenile justice practices. By examining neurological research indicating continued brain development into the mid-twenties, along with the high prevalence of trauma among justice-involved youth, this Note proposes the creation of a dedicated third system of care within the Department of Children, Youth, and Families …

Addressing The Root Of Housing Insecurity: Washington Should Divest From “Crime-Free” Housing Programs, Sarah Cerdena

Seattle University Law Review

Crime-Free Rental Housing Properties (CFRHPs) have proven to be an ineffective and inequitable approach to public safety. Often, tenants in these properties are evicted—at times, extrajudicially—as a result of conduct that does not rise to violations of their lease provisions, much less criminal behavior. By placing extraordinary power in the hands of local law enforcement to carry out these ordinances, CFRHPs predictably pose significant harm to Black and Latinx communities, survivors of domestic violence, disabled tenants, and low-income tenants generally. Recently, the Washington State Supreme Court grappled with the tensions arising between CFRHPs and the enforcement of Washington landlord-tenant law. …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Esg Investing Breaches Erisa Fiduciary Duties? A Closer Look At Spence V. American Airlines, Inc., Eric Chin-Ru Chang

Seattle University Law Review

In Spence v. American Airlines, Inc., the U.S. District Court for the Northern District of Texas found that American Airlines breached its fiduciary duties due to BlackRock’s ESG investing practices. Contrary to some reports suggesting that the ruling prohibits ESG investing under ERISA, a closer look at the ruling shows that the court only targeted American Airlines’ failure to manage conflicts of interest appropriately, rather than the legality of ESG investing itself. In light of the intensifying ESG backlash in the United States, this Article cautions against further restrictive measures on ESG investing. Such measures would exacerbate the widening …

Rightsizing Regulations To Foster Innovation And A Healthy Business Environment: Insights From Elite Executives, Brian Charles Mulligan, Nelson Granados

Engaged Management ReView

This study examines insights from business executives on how TRAILS—that is, taxes, regulations, assessments, interventions, litigation, and subsidies—influence entrepreneurial behavior and firm performance. Using an applied constructivist grounded theory design, we conducted 17 in-depth interviews to identify how top business executives view the effects of regulations on business performance. We adopt the premise that the right level and set of regulations lead to a healthier business environment. We find that right-sized TRAILS catalyze entrepreneurial dynamism, whereas wrong-sized TRAILS impose hidden opportunity costs, stifle innovation, and erode institutional trust. Crucially, the study reveals the vital role of the government as …

Unflexed Muscle: Sec Enforcement And Officer Sox Section 302 Certifications, Marc I. Steinberg, A.B. Steinberg

University of Miami Law Review

This Article represents the first work to analyze the Securities and Exchange Commission’s (SEC) neglect in its enforcement of the chief executive officer (CEO) and chief financial officer (CFO) Sarbanes-Oxley certification requirement. The Article addresses the appropriate construction of the statute’s reach, the enforcement proceedings instituted by the SEC under this provision, and the Commission’s failure to fulfill its legislative directive to adequately enforce this statute and Rule 13a-14 promulgated thereunder. In its implementation of the CEO and CFO certification requirement, the SEC has brought relatively few enforcement actions during over a two-decade period. Its enforcement with respect to CEOs …