Legislation Commons^™

Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert

Faculty Publications

This article asserts a comprehensive response to Elhauge’s provocative arguments. With respect to tying, the article shows that governing Supreme Court precedent does not deem the non-foreclosure “power” effects of the practice to be anticompetitive and that those effects are unlikely to reduce social welfare in the long run, especially after accounting for dynamic efficiencies. With respect to bundled discounting, the article shows that Elhauge’s proposed liability rule is both inapposite to consumer harm and inadministrable and that both “linked” market foreclosure and a form of below-cost pricing are necessary for anticompetitive harm and should therefore be prerequisites to antitrust …

The Roberts Court And The Limits Of Antitrust, Thom Lambert

Faculty Publications

This article first describes the fundamental limits of antitrust and the decision-theoretic approach such limits inspire. It then analyzes the Roberts Court’s antitrust decisions, explaining how each coheres with the decision-theoretic model. Finally, it predicts how the Court will address three issues likely to come before it in the future: tying, loyalty rebates, and bundled discounts.

Secret Inventions, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Patent law - and innovation policy more generally - has traditionally been conceptualized as antithetical to secrecy. Not only does the patent system require inventors to publicly disclose their inventions in order to receive a patent, but various patent doctrines are designed to encourage inventors to forego trade secrecy. This Article offers a critique of the law’s preference for patents. In particular, this Article examines whether and under what circumstances the law should prefer patents over secrets, and vice versa.

As an initial step towards a theoretically-supported system of inventor incentives, this Article constructs a framework that attempts to balance …

When Sixteen Ain't So Sweet: Rethinking The Regulation Of Adolescent Sexuality, Nicole Phillis

Michigan Journal of Gender & Law

Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental …

Paper Tigers: Rethinking The Relationship Between Copyright And Scholarly Publishing, Alissa Centivany

Michigan Telecommunications & Technology Law Review

Discontent is growing in academia over the practices of the proprietary scholarly publishing industry. Scholars and universities criticize the expensive subscription fees, restrictive access policies, and copyright assignment requirements of many journals. These practices seem fundamentally unfair given that the industries' two main inputs-articles and peer-review-are provided to it free of charge. Furthermore, while many publishers continue to enjoy substantial profit margins, many elite university libraries have been forced to triage their collections, choosing between purchasing monographs or subscribing to journals, or in some cases, doing away with "non-essential" materials altogether. The situation is even more dire for non-elite schools, …

Hatch-Waxmanizing Copyright, Michal Shur-Ofry

Michigan Telecommunications & Technology Law Review

This Essay presents a novel proposal for counter balancing "copyright overspills." In the background of the discussion is the common reality of users succumbing to rights holders' attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users' risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the …

Teva V. Eisai: What's The Real Controversy, Grace Wang

Michigan Telecommunications & Technology Law Review

This Note examines the changing role of declaratory judgment actions in challenging patents upon generic entry and evaluates alternative regulatory schemes to the FDA's current system of patent enforcement in the drug approval setting. Part I reviews the Federal Circuit's recent decisions regarding generic drug entry, focusing on how the courts justify declaratory judgments in the current system and when a "controversy" exists to create Article III jurisdiction. Part II examines the complex system of regulating generic drug entry and how attempts to stop the exploitation of loopholes have resulted in a patchwork of regulation by various parties. It challenges …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Successes And Failures In International Human Trafficking Law, Luis Cdebaca

Michigan Journal of International Law

Professor Carr yesterday remarked that human trafficking is too often discussed only in theoretical or academic ways. I've spent most of my career in the field, where interactions with victims, traffickers, and defense attorneys are anything but theoretical. But as keynote speaker for an academic symposium this morning, I'm going to try to lay out a bit of the conceptual state of play from my current vantage point. The title of this symposium, "Successes and Failures in International Human Trafficking Law," is a bit binary. Perhaps, in the best diplomatic tradition, we can temper that to "Limitations and Opportunities in …

Health Care: Why Jurisdiction Matters, Kevin C. Walsh

Scholarly Articles

Congress’s enactment of comprehensive healthcare reform legislation last year was the culmination of one round of an intense debate that continues today. The second round began the same day that the first round ended, when President Obama signed the legislation. In this second round, the locus of debate has shifted from Congress to the courts, which are processing a slew of lawsuits filed immediately after enactment.

One of the most prominent is Virginia v. Sebelius. The lawsuit presents on its face a prominent and critically important question of federalism: Did Congress exceed the limits of its enumerated legislative powers by …

The Political Pathway: When Will The Us Adopt A Vat?, Reuven S. Avi-Yonah

Book Chapters

The reason the VAT is on the table is also stated in the referenced article by Orszag: "Although hardly anyone wants to admit it, we're not going to solve our budget deficit unless revenue is part of the equation." And while in the short term it may be possible to address the deficit by raising income tax rates(Orszag suggests letting all the Bush tax cuts expire in 2013}, in the long term it doesn't seem plausible that we can raise sufficient revenue that way to pay for Medicare, Medicaid, Social Security, interest on the national debt, and defense and some …

The Freedom Of Information Act Trial, 61 Am. U. L. Rev. 217 (2011), Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

This Article examines the paucity of Freedom of Information Act (FOIA) cases that go to trial and courts' preference for resolving these disputes at the summary judgment stage. Using traditional legal analysis and empirical evidence, this Article explores whether we should expect FOIA cases to go to trial and how the scarcity of FOIA trials compares to the trial rate in civil litigation generally. It concludes that the unusual use of summary judgment in FOIA cases has unjustifiably all but eliminated FOIA trials, which occur in less than 1 % of FOIA cases. It further examines how conducting FOIA trials …

Top Jobs Act Higher Education Reform Legislation, Mark E. Rubin

Richmond Public Interest Law Review

The most important piece of legislation affecting higher educa- tion passed by the 2011 Virginia General Assembly was Governor McDonnell's higher education reform bill. The title of the bill is quite expressive-"Preparing for the Top Jobs of the 21st Century: The Virginia Higher Education Opportunity Act of 2011," or "TJ21.", It is significant because of its breadth, its innovative ap- proach to funding, and the government relations strategy utilized to assure its passage.

With Great Technology Comes Great Responsibility: Virginia's Legislative Approach To Combating Cyberbullying, Kelsey Farbotko

Richmond Public Interest Law Review

This comment will examine Virginia's statutory response to the growing problem of cyberbullying, focusing particularly on the bills introduced in the most recent Virginia General Assembly ses- sion. Section II will define cyberbullying and other cybercrimes, as well as discuss the effects of this form of harassment and the impor- tance of regulating speech in this manner. Section III will describe current statutes that regulate cyberbullying, as well as the three bills that came before the Virginia General Assembly in its 2011 session. Particularly important is House Bill 2059, which differs from the oth- er two bills not only because …

Freedom Of Contract Vs. Free Alienability: An Old Struggle Emerges In A New Context, Neil B. Cohen, William Henning

Faculty Scholarship

No abstract provided.

The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod

Faculty Articles

Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice, the individual person determines the value of human goods such as life, health, and marriage.

On the other side, proponents of strong government restrictions on personal choice …

Community As A Redistricting Principle: Consulting Media Markets In Drawing District Lines, Jason C. Miller

Indiana Law Journal

With the 2011 redistricting process poised to commence across the country, debates are raging as to who should draw district lines, how to keep those individuals from drawing them for partisan advantage, and the best way to draw minority districts. This paper addresses the largely overlooked area of media markets. Districts drawn to conform with media markets experience higher voter turnout. Moreover, linking a city and its economically-connected suburbs together is simply common sense. Discussing the impact of district conformity, or lack thereof, with media market boundaries on campaign strategy, news reporting, voter participation, grassroots organizing, and candidate recruitment, this …

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes - or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including …

Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Articles

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.