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Oligopoly Pricing and Richard Posner
Get PDFOver a span of nearly 50 years Richard Posner’s voice has loomed large over the subject of oligopoly pricingand antitrust. The span begins in 1969 with Posner’s publication of “Oligopoly and the Antitrust Laws: A Suggested Approach,” which argues for more aggressive enforcement of Section 1 in cases involving circumstantial evidence of conspiracy. The span ends with Posner’s opinion in In re Text Messaging Antitrust Litigation, in 2015. The two writings, the first an academic article published early in Posner’s career and the second a judicial opinion published near the end of his time on the bench, suggest very different approaches to the enforcement of Section 1 in oligopoly pricing cases. In Part II, I describe the text messaging litigation and the reasoning behind Posner’s virtual volte-face on oligopoly pricing. In Part III, I discuss the beginning of Posner’s journey, and the basis for his comparatively idealistic vision of the scope of Section 1. Part III considers the path forward; what courts are likely to do on the question of the scope of Section 1, and what courts should do
Deterrence and Aggregate Litigation
Get PDFThis paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance is observed, which worsens as the number of victims increases. Compliance is never socially optimal, and the shortfall from optimality increases with the number of victims. These results, which continue to hold even if victims anticipate being joined in a single forum, suggest a more nuanced and potentially more robust justification for the class action than has hitherto been provided. Implications for collusive settlements of class action litigation are discussed
The Story of Environmental Justice and Race in the United States
No full textEnvironmental injustice remains a significant problem in the United States. In Louisiana, communities of color are concentrated in an industrial corridor between New Orleans and Baton Rouge. Petrochemical processing plants line this corridor. Called “Cancer Alley” for the prevalence of disease and premature death among local residents, the corridor hosts hundreds of processing facilities, including one of the world\u27s largest oil refineries. Exposure to environmental contaminants is segregated along lines of race and class. Communities of color in the United States have complained against polluting industries, opposed the permitting of new industry projects, and called for investigations and interventions. Victims of rights violations associated with environmental pollution presently have little recourse as avenues to seek remedy in US courts have narrowed. Legal doctrines that require intentional discrimination to recognize an abuse render it increasingly difficult to resolve claims of environmental racism in court. This chapter seeks to demonstrate that international human rights instruments can be instructive and that developments in international policy on business responsibility and human rights could hold promise for communities of color in the United States seeking environmental justice. Activists and affected communities could find other avenues more receptive to recognizing the reality of environmental racism.
Part I of the chapter defines environmental justice and deconstructs public debates on environmental racism and environmental justice in the United States. It discusses the emergence of claims of environmental racism and the evolution of the environmental justice movement. It presents evidence of the disproportionate impact that pollution has had and that climate change is expected to have on communities of color in the United States. It also offers a critical examination of the consequences of moving public discourse away from environmental racism toward environmental justice. Part II of the chapter provides an overview of the international human rights legal framework and efforts to define human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment as relevant to realizing environmental justice in the United States. Part III of the chapter provides an overview of the domestic civil rights legal framework relevant to the formulation of environmental justice claims. After a discussion of how international human rights treaties are treated by US courts, it surveys environmental racism litigation. The impact of the intent requirement on equal protection and disparate impact claims of racial discrimination related to environmental protection is also examined. Next, it examines the efficacy of initiatives by other branches of government to address environmental injustice from the perspective of people involved in the creation and implementation of programs developed to address adverse impacts of environmental harms on people of color communities. Specifically, executive orders and administrative agency actions are reviewed for content informed by international norms. Part IV presents representations the US government has made to international human rights institutions with respect to environmental justice. It also presents how communities affected by environmental injustice have relied on international institutions for recognition of rights claims. The chapter concludes with a caution that race-neutral, color-blind approaches to disparity in environmental protection are inconsistent with international norms and do little to advance environmental justice. It calls for a more inclusive environmental justice movement to embrace concerns of racial justice and to look to further define the obligations of a range of actors beyond the state to respect environmental human rights, including business enterprises
The Case for an International Court of Civil Justice
Get PDFWhen multinational corporations cause mass harms to lives, livelihoods, and the environment in developing countries, it is nearly impossible for victims to find a court that can and will issue an enforceable judgment. In this work, Professor Maya Steinitz presents a detailed rationale for the creation of an International Court of Civil Justice (ICCJ) to hear such transnational mass tort cases. The world\u27s legal systems were not designed to solve these kinds of complex transnational disputes, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice in country after country, court after court. The Case for an International Court of Civil Justice explains how an ICCJ would provide victims with access to justice and corporate defendants with a non-corrupt forum and an end to the cost and uncertainty of unending litigation - more efficiently resolving the most complicated types of civil litigation. Addresses a global audience of scholars, students, lawyers, and general educated readership Readers will learn about the history of the problem and this possible solution through easy-to-understand stories set in India, Ecuador and Nigeria Provides highly sophisticated legal analysis of global access to justice deficit in transnational mass tort cases as well as detailed, workable plans for the new international courthttps://scholarship.law.bu.edu/books/1355/thumbnail.jp
Mapping States\u27 Reactions to the Syria Strikes of April 2018 - A Comprehensive Guide
No full textThis is the permanent page for the Mapping States’ Reactions to the Syria Strikes of April 2018 project, first published in an earlier incarnation here at Just Security on April 22, 2018. As we described there, in the early morning hours of April 14, 2018, in Syria, the United States, France and the United Kingdom launched a series of strikes against three targets related to Syria’s chemical weapons program. In the days that followed, states provided a range of reactions to the strikes, including at an emergency session of the UN Security Council held on April 14. Some of these official statements include considerations of international law — explicitly pronouncing on the legality or illegality of the strikes or referencing international rules in general terms — while many others do not. Consolidating and analyzing state reactions — from intervening states, affected states, and third party states — may be useful to evaluating both the political atmosphere as well as the legality of the use of force in such circumstances
Can a Court Change the Law by Saying Nothing?
Get PDFCan an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit’s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36. Including those no-opinion affirmances, the Federal Circuit has found the patent to be invalid in more than ninety percent of its decisions. The court’s precedential opinions, however, tell a different story: nearly a quarter of them favor the patentee by rejecting challenges to patent validity. This difference is due largely to one remarkable fact: Although the court has issued over fifty Rule 36 affirmances finding the asserted patent to be invalid, it has not issued a single Rule 36 affirmance when finding in favor of a patentee. Rather, it has written an opinion in every one of those cases. As a result, the Federal Circuit’s precedential opinions provide an inaccurate picture of how disputes over patentable subject matter are actually resolved. Those opinions suggest that any given patent has a decent chance of surviving an eligibility challenge at the Federal Circuit. But, in reality, very few patents do. Our findings suggest that, by saying nothing, a court can indeed affect substantive law, or at least the perception of it. This has interesting implications both for the on-going debate over the legality of Rule 36 and, more broadly, for understanding the differences between the law on the books and the actual experience of litigants
Testimony of Rebecca Ingber Before the United States Senate Committee on the Judiciary On the Nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court
Get PDFProfessor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh\u27s national security and international law jurisprudence, in particular, the court\u27s role in considering international law constraints on the President\u27s war powers, and the potential effects of this judicial approach on executive power
Extremist Speech, Compelled Conformity, and Censorship Creep
Get PDFSilicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere.
These changes are less the result of voluntary market choices than a bowing to governmental pressure. Private speech rules and policies about extremist content have been altered to stave off threatened European regulation. Far more than illegal hate speech or violent terrorist imagery is in EU lawmakers’ sights, so too is online radicalization and “fake news.” Newsworthy content may end up being removed along with terrorist beheading videos, “kill lists” of U.S. servicemen, and instructions on how to blow up houses of worship.
The impact of extralegal coercion will be far reaching. Unlike national laws that are limited by geographic borders, terms-of-service agreements apply to platforms’ services on a global scale. Whereas local courts can only order platforms to block material viewed in their jurisdictions, a blacklist database raises the risk of total censorship. Companies should counter the serious potential for censorship creep with definitional clarity, robust accountability, detailed transparency, and ombudsman oversight
The Business of AI Startups
Get PDFNew machine learning techniques have led to an acceleration of “artificial intelligence” (AI). Numerous papers have projected substantial job losses based on assessments of technical feasibility. But what is the actual impact? This paper reports on a survey of commercial AI startups, documenting rich detail about their businesses and their impacts on their customers. These firms report benefits of AI that are more often about enhancing human capabilities than replacing them. Their applications more often increase professional, managerial, and marketing jobs and decrease manual, clerical, and frontline service jobs. These startups sell to firms of different sizes, in different industries and nations, but the distribution of activity is distinct from that of larger firms. Firms serving EU customers appear to use higher levels of data protection
What Explains Observed Reluctance to Trade? A Comprehensive Literature Review
Get PDFValuation gaps and exchange asymmetries are among the most widely studied phenomena in the field of behavioral economics. The purpose of this chapter is to present the current state of the social science literature related to observed reluctance to trade. Numerous theories have been proposed and only a few might be safe to rule out based on the evidence to date. The chapter begins by describing the standard model of preferences, which generally assumes that valuation is independent of ownership status, and then catalogs early findings that seem to suggest that ownership status influences valuation. Early research tested various potential explanations for observed reluctance to trade, and the results did not point to any one theory. Despite this, the literature gravitated toward a single theory — endowment theory, which assumes that preferences are reference-dependent and that individuals are averse to losses. With endowment theory on the rise, some went to work to investigate the conditions that might trigger loss aversion and those that might reduce its effects. Since the early 1990s, a number of alternative theories have been developed and tested by both economists and psychologists including substitution theory, expectation theory, preference uncertainty, mere-ownership theory, enhancement theory, subject misconceptions, and regret avoidance. The chapter walks through each proposed theory, cataloging the evidence for and against. While some theories have garnered more support from the data than others, no single theory yet deserves the title of leading theory. In addition, the phenomenon itself has proved too unstable to warrant general claims that valuations depend on ownership (or expectations over ownership) or that individuals are generally reluctant to trade. Given the current state of the literature, to make such claims is to misrepresent the full set of results. As this chapter makes clear, much more work is required to develop a theory or set of theories worthy of designation as the leading theory