Black Metropolis Research Consortium
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Political Discretion and Antitrust Policy: Evidence from the Assassination of President McKinley
No full textWe analyze the response of asset prices to the assassination of President William McKinley in 1901. During his term in office, the largest wave of merger activity in American history occurred, yet McKinley did not attempt to enforce the Sherman Act against the firms. By contrast, his vice president, Theodore Roosevelt, was known to be interested in restraining corporate combinations. We find that firms that had engaged in mergers saw greater declines in their abnormal returns following McKinley’s assassination. We also study the market’s response to the first antitrust suit initiated by Roosevelt once he took office and find similar patterns, which confirms the importance of antitrust enforcement in the response of asset prices. Roosevelt’s accession caused a significant change in the approach to antitrust, not from new legislation but from more aggressive enforcement of existing law
New Life for the Unlawful Inclosures Act: Immunizing Corner-Crossers from State Trespass Actionew Life for the Unlawful Inclosures Act: Immunizing Corner-Crossers from State Trespass Actions
Full text linkIn many parts of the rural western United States, the land is divided into rectangular parcels that alternate between private and public ownership, so as to resemble a checkerboard. Some of those public parcels are “corner-locked,” meaning that they meet other public parcels only at a corner. It is technically not possible to access corner-locked parcels without at least briefly hovering over a private parcel, which constitutes trespass on the private parcel under the ad coelum doctrine.
Since the COVID-19 pandemic has increased demand for outdoor tourism, more people have been endeavoring to reach the public parcels by “corner-crossing” from one public parcel to the other. Private landowners have taken issue with the intrusions over their land that result. The corner-crossing is a trespass by the letter of state trespass law, but corner-crossers argue that the Unlawful Inclosures Act of 1885 immunizes them from trespass liability.
This Comment explores the extent to which the Unlawful Inclosures Act does so. It examines the relevant case law and concludes, based on the text and historical backdrop of the Act, that landowners may not sue cornercrossers for the momentary trespasses they effect. It argues that this reading follows from the open-range doctrine in effect in the rural West when the Act was passed
“Long COVID,” Bodily Systems as ADAAA Major Life Activities, and the Social Model of Disability
Full text linkThe Credibility Effect: Defamation Law and Audiences
No full textWhat should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on innocent targets who choose not to file lawsuits. The existence of the credibility effect calls for different balances than are currently employed in defamation law; challenges the vindication justification; and, more broadly, illustrates the limits of policies intended to fight misinformation
Carrots, Nudges, and Sticks
No full textOne of Chicago’s Best Ideas, attributable to Cass Sunstein and Richard Thaler (and a few others), emphasized the ability of “nudges” to change behavior in ways that were less intrusive than government mandates or other more direct methods aimed at influencing behavior. In this talk, the first in our annual series of “Chicago’s Best Ideas“, Professor Levmore expanded on the idea, a few of its applications, and then the economic and moral arguments against nudges. The larger topic is to place nudging strategies within the framework that addresses law’s constant choice between carrots (affirmative encouragements) and sticks (penalties). How, for example, should we decide whether to encourage socially useful behavior by taxing energy use, by rewarding efficient conservation, or by creating voluntary compliance (nudging) through default rules on temperature controls and other devices? Closer to home, should we regularly call on students in class, reward those who ask good questions, or slightly penalize those who do not contribute to class discussion. And when is some combination of nudges, carrots, and sticks the way to go? The choice is found almost everywhere
Sophonisba Breckinridge: Lawyer and activist
No full textThis talk examined the remarkable career of our graduate Sophonisba Breckinridge, JD 1904, the first woman to graduate from our Law School -- after earning a PhD degree from our university. Her career included feminist activism and international diplomacy, and, as a lesbian woman, she sought recognition for same-sex relationships
Real-World Prior Art
Full text linkThe most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. And yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior art.” In patent law, prior art is something that predates an invention and may render it not new. “Real-world” prior art activities involve using or selling real-world embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the public but does not allow them to touch it. Has she put the invention into “public use,” thus preventing others from obtaining a patent? Does it matter whether someone viewing her demonstration could learn how to make and use the invention? Suppose Aleida keeps her invention secret but uses it to provide a commercial service. Has she put the invention into public use, or placed it “on sale”? Or suppose Aleida offers her invention for sale to Charlise, who declines to purchase it. It is black-letter patent law that after one year passes, Aleida cannot patent this invention. But imagine that Bruno independently develops the same invention—can he obtain a patent?
These questions are not outlandish law school hypotheticals—they are central issues surrounding whether an invention is or is not novel. Yet litigation over these issues has resulted in conflicting outcomes and contradictory explanations, leaving lower courts and the Patent Office to flounder in applying these doctrines. In this article, we sort through this conceptual confusion. We suggest both doctrinal and institutional changes that would elucidate an area of law that is likely to grow in importance. And we argue that the value of resolving these questions runs much deeper than determining the answer to particular cases. The answers to these questions depend upon—and reveal—the conceptual superstructure of patent law. They implicate patent law’s most central questions: What does it mean for an invention to be new and thus patentable? What policy interests is patent law attempting to achieve, and whose interests does it aim to protect? And what are the conditions under which a party has forfeited the opportunity to obtain a patent? By addressing these issues, we endeavor to place the entire jurisprudence of patent novelty on more solid footing