Bulletin

Bulletin

Bulletin

The Non-Consequentialist Uses of Economic Analysis: A Comment on Dagan and Kreitner, Economic Analysis in Law

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Lewis A. Kornhauser† Introduction Dagan and Kreitner have offered a rich and elegantly written discussion of the normative uses of economic analysis of law. For Dagan and Kreitner, a scholar uses economic analysis normatively either when she evaluates a legal rule or institution or when she makes policy recommendations. These two normative uses of economic […]

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Response to Jennifer Arlen on The Essential Role of Empirical Analysis in Developing Law and Economics Theory

Tamar Kricheli Katz† Jennifer Arlen’s The Essential Role of Empirical Analysis in Developing Law and Economics Theory explores the relationship between law-and-economics theory and empirical analysis. The paper provides a rich discussion of empirical-analysis examples to inform normative theoretical understandings.  The paper focuses on empirical investigation of decision making, documenting the instances and conditions in […]

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The Sustainable Corporate Governance Initiative in Europe

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Mark Roe, Holger Spamann, Jesse Fried & Charles Wang† In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by Ernst & Young (EY). The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, […]

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ESG Investing Under ERISA

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Bernard S. Sharfman† Introduction The Department of Labor (“DOL”), through its administration of ERISA, has a critical role to play in the regulation of private “employee pension benefit plans.”. Most importantly, the DOL is tasked with enforcing the fiduciary duties of ERISA plan managers (trustees who retain investment and voting authority or “investment managers” who […]

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Killing Innovation?: Antitrust Implications of Killer Acquisitions

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Amy C. Madl† Killer instinct is a key business asset. Firms live and die by their strategic choices, and the desire to outcompete rivals colors most business decisions. While many firms strive to win market share on their merits, economists have recently identified an anti-competitive practice—killer acquisition—that enables incumbents to maintain market share by burying, […]

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But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies

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Susan Benesch† Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret.  To correct this, advocates have proposed that companies follow international human-rights law.  That law–by far the world’s best-known rules for governing […]

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Applying International Human Rights Law for Use by Facebook

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Michael Lwin† In recent years, social media platforms have been beset with hate speech, misinformation, disinformation, incitement of violence, and other content that cause real-world harm. Social media companies, focusing solely on profit-maximization and user-engagement, have been largely asleep at the wheel during outbreaks of violence in countries such as Myanmar, Sri Lanka, New Zealand, […]

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Regulation and Innovation: Approaching Market Failure from Both Sides

Yafit Lev-Aretz† & Katherine J. Strandburg†† Regulation is often claimed to be the enemy of socially desirable innovation because of factors including innovation’s unpredictability and reulation’s compliance costs. In this essay, we bring two intellectual property scholars’ perspectives to bear on the question of regulation’s impact on innovation. We offer a novel, yet intuitive, analytical framework […]

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Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies

In Trump v. Pennsylvania, the Supreme Court faces the question whether the Administrative Procedure Act’s provision governing scope of judicial review instructs courts to give universal injunctions – injunctions telling the government not to apply a challenged agency action to anyone, not just the plaintiff. That provision, section 706 of title 5 of the United States […]

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Haystack in a Hurricane: Mandated Disclosure and the Sectoral Approach to the Right to Privacy

Tyler J. Smith† Privacy law is an extremely complex and complicated problem. And, unfortunately, the United States remains one of the only Western countries without comprehensive consumer data protection laws. Until the federal government decides to address the ubiquitous collection and use of data by corporations with omnibus legislation similar to the EU’s GDPR—or until […]

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Wall Street and Progressivism

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William S. Laufer† & Matthew Caulfield†† On the margins of the partisan political divide is a groundswell of anti-corporate rhetoric conjuring images of an unbridled, unregulated, and uncontrollable corporate America. This Essay considers a casualty of this progressive imagery: serious legislative and regulatory reforms to ensure corporate accountability. Demonizing all corporations does little to promote […]

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Regulatory Takings Without Confiscatory Returns

In regulated industries, including telecommunications, electric power, and natural gas, there has been a dramatic substitution of price cap regulation (PCR) for rate-of-return regulation (RRR). Despite this sea change in regulatory regimes, the Hope Standard, which protects the regulated firm from confiscatory rates so that it remains a financially viable enterprise, continues to serve as […]

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What Can Managers Privately Disclose to Investors?

Regulators have long been aware that differential access to information can undermine the efficiency and fairness of financial markets. In an effort to place investors on equal footing, the Securities and Exchange Commission in 2000 created Regulation Fair Disclosure (Reg FD), which prohibits public firms from disclosing material information to certain parties but not others. […]

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Shaming Big Pharma

The FDA recently published a list of top branded drug companies that are suspected of purposely blocking competition from the generic drug industry. Calling out big pharma by “naming and shaming” them into good behavior is an innovative, still largely experimental, regulatory tool designed to harness public opinion and build on pharma’s reputational sensitivities. This […]

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The Mandatory Repatriation Tax Is Unconstitutional

In late 2017, Congress passed the first major tax reform in over three decades. This Essay considers the constitutional concerns raised by Section 965 (the “Mandatory Repatriation Tax”), a central provision of the new tax law that imposes a one-time tax on U.S.-based multinationals’ accumulated foreign earnings. First, this Essay argues that Congress lacks the […]