In the 1980s, George Priest published two seminal articles on the intellectual history of strict liability for injuries caused by defective products. First, he demonstrated that the states’ remarkably quick acceptance of such liability starting in the mid-1960s reflected the consensus among prominent legal thinkers of the wisdom of “enterprise liability” theory, which had been […]
This article is a modest response to George Priest’s lament that academics should pay more attention to capitalism as an institution. Fundamental to contract and property, which George described as forming the bedrock of capitalism, is the counterintuitive ability of participants to exercise a modicum of self-restraint, in what Tocqueville called “self-interest rightly understood” (SIRU). […]
George L. Priest’s research included a deep insight into the legal basis of capitalism. From his perspective, capitalism emerges from the rule of law and constitutional democracy, as property rights and competition require a limited government. The United States Constitution enabled the success of the United States’ economy by concentrating on limiting power. Priest’s work […]
Evidence in recent years points to a fraying of criminal antitrust enforcement. Aggregate criminal penalties have fallen dramatically, and a series of recent acquittals has reduced Department of Justice (DOJ) win rates in (Sherman Antitrust Act) Section 1 cases from previously stratospheric levels. An obvious explanation is that the overall strength of the federal enforcement […]
Like many scholars who, over the course of long careers, have focused on various dimensions of international law—in my case, principally international trade law and the institutional dimensions of economic and social development in developing countries—it is difficult not to be depressed about the current fractious state of geopolitical relations. In the brief comments that […]
Unlike other forms of insurance, such as auto, life, or commercial general liability, health insurance in the United States covers many risks that do not meet traditional criteria for insurability. A large margin of health care that we view as essential—including preventive care, care for preexisting conditions, and elective care—departs from actuarial principles of confining […]
Recent subfederal interventions into immigration policymaking have sparked an explosion of federalism scholarship, but nearly all such accounts focus on two domains: enforcement and state benefits. The literature continues to assume that the federal government maintains exclusive control over immigration status decisions. This Article challenges that conventional wisdom by identifying a third missing category of […]
When a fiscal crisis strikes a local government, local communities suffer. Fiscal crises mean that there is no money for public safety, no money for pensioners, no money to keep residents’ lights on, and no money for the basic services that make for modern life. Just ask the residents of Detroit or Puerto Rico, who […]
Venture capital is widely perceived to have a gender problem. Both founders seeking capital and the investors themselves are overwhelmingly male, fomenting concerns about how—and how fairly—the VC sector distributes its economic gains. Although gender disparities in funding are well documented, we still know little about whether the governance of VC-backed startups similarly manifests gender […]
Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One […]
Small businesses are the mainstay of the U.S. economy, but they face particular challenges in acquiring financing because of a set of informational problems. It is difficult for lenders to obtain reliable information about small businesses’ finances, and even when they can get information, credit modeling is difficult because of small businesses’ heterogenous nature. These […]
This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade […]
Pharmaceutical innovation relies on pharmaceutical firms’ ability to acquire promising new molecules and the biotech firms that discovered them. Such nascent competitor acquisitions allow the pharmaceutical industry to efficiently finance the risky drug development process. But they also enable “killer acquisitions,” where incumbents purchase startups and discontinue their promising drug projects to protect existing products. […]
This Article identifies the problem of “antitrust abandonment”: a pattern of long-term, unexplained disuse of antitrust-like enforcement powers held by industry regulators. Much of antitrust scholarship focuses on the primary federal enforcers, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This Article looks instead at several other federal agencies that hold statutory […]
A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would […]