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Property Law and Real Estate Transactions Joint Program, Co-Sponsored by Community Economic Development, Clinical Legal Education, and State and Local Government
No full textCorporate landlords have been acquiring an increasing share of the U.S. rental housing stock. Data and anecdotal evidence indicate that such owners operate differently across a variety of measures, including rent setting, property maintenance, fee collection, and evictions. Some argue that institutional landlords offer advantages related to access to capital and economies of scale. By contrast, developments like algorithm-based rent setting and anonymous corporate entity structuring have caused concern. This program will analyze the shifting terrain in the rental housing market and consider responses like rent stabilization, good cause eviction protections, landlord registries, and universal access to counsel, among others. The Sections on Property Law and Real Estate Transactions held a virtual business meeting prior to the Annual Meeting
The Failure of Quick Look Analyses of Antitrust Claims
Get PDFBefore courts can determine whether a defendant may have violated antitrust laws, they must first select the appropriate mode of analysis: the fact-intensive rule of reason, summary condemnation under the per se rules, or a quick look analysis. “Quick look” is intended to shorten and simplify inquiries into conduct that does not fall under the per se rules but that nonetheless has obvious anticompetitive effects.
The quick look doctrine, however, has failed to streamline antitrust litigation, and the related caselaw has failed to develop concrete or usable rules. Despite decades of litigation, the quick look doctrine remains of dubious legal pedigree, muddled application, and questionable use.
The quick look doctrine traces its origins to three Supreme Court cases that neither implemented nor even described a quick look methodology. Later Supreme Court cases seemed to (somewhat ambiguously) endorse the doctrine as a matter of theory but rejected its application in the cases before the Court. In the lower courts, quick look is frequently litigated but seldom applied. The handful of decisions where the use of quick look was dispositive tend to be inconsistent with precedent or reversed in later proceedings.
Quick look’s problems are endemic and unfixable. At bottom, quick look depends on non-economist judges ruling, as a matter of law, regarding the economic effect of challenged conduct. Most judges are properly reluctant to moonlight as amateur economists. In case after case judges reject quick look legal presumptions in favor of a fact-based rule of reason methodology. Rather than continuing with stagnant debates over the applicability of the quick look doctrine, courts should explicitly abandon the doctrine and refocus their attention on more productive questions, such as determining what evidence may satisfy a plaintiff’s burdens of proof under the rule of reason
Rediscovering Adam Smith: An Inquiry in the Rule of Law, Competition, and the Future of the Federal Trade Comission
Get PDFIt is my privilege to be here to celebrate the 40th anniversary of the Competitive Enterprise Institute (³CEI´), along with the 300th birthday of Adam Smith. For decades, CEI has been at the vanguard of free-market advocacy, and it is wonderful to combine CEI\u27s anniversary with a celebration of Adam Smith. I will start with a standard disclaimer: The views I express today are my own. They do not necessarily represent those of the Federal Trade Commission (FTC or ³Commission´) or any other commissioner
Patent Title Insurance
No full textThis chapter explores the possibility of offering a form of insurance to patent-holding inventors, protecting them against the risk that their patents are invalidated in administrative proceedings before the Patent Trial and Appeal Board. Although this kind of “patent title insurance” does not appear to exist to date, it would potentially have tremendous public benefits, helping to resolve heated policy debates over both low patent quality and those administrative proceedings. Yet the potentially high cost of underwriting not only explains why this insurance is not readily available on the market today, but also sheds light on fundamental difficulties with the patent system as a whole.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1427/thumbnail.jp
Regulating Fintech: A Harm Focused Approach
No full textMuch of the discourse around fintech regulation focuses on how regulation can best facilitate private-sector innovation. However, financial regulators in the United States do not have a statutory mandate to promote private sector innovation. This Article argues that when devising approaches to regulating fintech, financial regulators should be guided by their statutory mandates – and that these mandates (even mandates for efficiency and competition) should be conceived of as instructions to prevent or mitigate public harm. This Article then uses the framework of “accommodating, taming, or coping” to assess some extant fintech regulatory strategies in light of how they respond to the public harm arising from some fintech business models (particularly crypto business models). This Article is critical of regulatory strategies designed to peel back existing protective regulation to accommodate private sector fintech innovation; instead, it advocates for a taming approach but recognizes that, in practice, protective regulatory responses can more accurately be described as coping. The Article concludes with an exhortation for more precautionary taming regulation of fintech technologies and business models
A Dam Over Troubled Waters? The Obligation to Negotiate In Good Faith in Annex C of the Treaty of Itaipu
Get PDFThe year 2023 marked the fiftieth anniversary of the entry into force of the Treaty of Itaipú (“the Treaty”). According to paragraph VI of the Treaty, its provisions are to be reviewed after fifty years have elapsed from the date the Treaty entered into force. In October 2021, João Francisco Ferreira, the former Brazilian representative of the Itaipú binational entity, stated in a press conference what seemed to be a new interpretation of the review provision contained in Annex “C” of the Treaty of Itaipú. He noted that there is no obligation to negotiate Annex “C” if an agreement is not reached between the two states. Moreover, according to Ferreira, reviewing Annex “C” can take place from 2023 onwards, and while there is a widespread understanding that this measure is obligatory, it is not so
Slavery Still Exists and May Have Produced Your Hairdryer
Get PDFIn 2020, the International Labour Organization (“ILO”) estimated that forced labor generated $51 billion USD. Many profiteers are not individual bad actors, but rather, corporations. Recently it came to light that one corporate profiteer is the multinational technology manufacturing company, creator of the most awarded hair care device in 2021: Dyson Limited. While Dyson has received praise for its products, Malaysia charged Dyson’s main production factory, ATA IMS, with labor law violations. Shortly thereafter, in February 2022, UK law firm Leigh Day publicly announced its suit against Dyson on behalf of the workers in Dyson’s Malaysia factory.
This Comment analyzes the United Kingdom’s and Malaysia’s international obligations and their respective adherence to those obligations. Ultimately, this Comment finds Malaysia in compliance with its obligations and finds that the United Kingdom is in violation of the Protocol of 2014 to the Forced Labour Convention, 1930 for its failure to sanction Dyson. This Comment recommends the United Kingdom sanction Dyson and work with Malaysia to investigate whether corruption facilitated forced labor. Finally, this comment recommends that anti-slavery practitioners employ follow the money techniques to better discover and sanction corporate perpetrators of slavery
The Importance of Administrative Appeals as Second Instance Bodies to Strengthen Migration and Asylum Systems
Get PDFAccording to data from UNHCR\u27s Report, Global Trends - Forced Displacement in 2022, there were 108.4 million forcibly displaced people worldwide in 2022; in the first half of 2023 alone, there were 110 million displaced people, indicating that 2023 could double the figures of 2022. Based on my experience as an administrative judge in the Administrative Migration Tribunal in Costa Rica— a body of second instance in the migration system— I consider that, in view of the impact that the migration and asylum systems had had in countries of transit and destination, it is essential that there be second instances with specialized personnel who are independent with objective knowledge in the field. Further, they must review the due process of applications to different migratory and asylum categories to guarantee effective access to justice and review of due process. The purpose of this article is to highlight the importance of strengthening immigration and asylum systems through the implementation of specialized appellate instances. These bodies must independently review, without being influenced by political interests, appeals filed by migrants and asylum seekers against unfavorable decisions in the regularization processes in host countries
Destruction and Discrimination: How France Violated the Fundamental Rights of Irregular Migrant Children in Mayotte
Get PDFArticles 2 and 3 of the United Nations Convention on the Rights of the Child (UNCRC) guarantee freedom from status-based discrimination in any state action involving children and require states to properly consider children’s best interests. Despite France’s position as a UNCRC state party, its government denied access to housing and conducted improper detention and expulsion procedures based on the irregular migratory status of children in its small overseas department of Mayotte. This Comment argues that France therefore violated international human rights law under UNCRC Articles 2 and 3. Furthermore, this Comment recommends three possible action steps, particularly that France should shift its focus from destruction of informal homes to construction of better housing communities by engaging in slum upgrading programs and ensuring access to fundamental rights for irregular migrant children in Mayotte
