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The Evolution and Vitality of Merger Presumptions: A Decision-Theoretic Approach
Get PDFThis article reviews the formulation and evolution of the Philadelphia National Bank anticompetitive presumption through the lens of decision theory and Bayes Law. It explains how the economic theory, empirical evidence and experience are used to determine a presumption and how that presumption interacts with the reliability of relevant evidence to rationally set the appropriate burden of production and burden of persuasion to rebut the presumption. The article applies this reasoning to merger presumptions. It also sketches out a number of non-market share structural factors that might be used to supplement or replace the current legal and enforcement presumptions for mergers. It also discusses the potential for conflicting presumptions and how such conflicts might best be resolved
Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art
Get PDFNonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?
This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and political influences that have now disappeared. What remains in its wake is a vague artifactual referent, historically untethered and conceptually reduced. This article reveals modernism’s invisible yet surprisingly tenacious hold on the relevant legal discourse, demonstrating how an embrace that appears both expansive and central to artistic expression is actually narrow and anachronistic. It obscures the big picture. To realign First Amendment theory and jurisprudence with artistic expression, the law should acknowledge the changes wrought by postmodernism
The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century
Get PDFWhen the fledgling U.N. negotiated a treat to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migration that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and argued that the Refugee Convention has become outmoded and obsolete.
This Article considers how well suited this treaty is for the protection of refugees fleeing persecution in today\u27s world. The author first looks at how the nature of the state itself has evolved and finds that too many governments today fail at providing significant portions of their citizens with the most basic level of human security. A new cast of persecutors apart from the state now exerts authority and power in such societies, targeting particular societal groups using new forms of persecution. Examining how states have adapted this multilateral agreement to these changing circumstances, the author finds that this treaty continues to be vital in protecting the human rights of refugees thanks to two important treaty elements: a clear and fundamental purpose to protect individuals whose governments have been unwilling or unable to do so, and flexible terms that have enabled jurists and government officials to adapt the refugee definition to the changing nature of forced migration. Accordingly, the author\u27s analysis confirms the conclusion of the International Law Commission Special Rapporteur on Treaties over Time that subsequent practice by the parties may guide an evolutive interpretation of a treaty
Charitable Giving, Tax Expenditures, and Direct Spending in the United States and the European Union
Get PDFThis Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence and does not provide a clear rule for distinguishing between the two, adding to the confusion of Member States and taxpayers. The Article then surveys the Supreme Court’s Dormant Commerce Clause jurisprudence, under which the Court analyzes discriminatory state spending provisions. The Article concludes that although both the Supreme Court and the ECJ prioritize formalism over economic equivalence, the Supreme Court’s approach to tax expenditures is more defensible than that of the ECJ due to the different federal structures of the two jurisdictions
Does Federal Spending \u27Coerce\u27 States? Evidence from State Budgets
Get PDFAccording to a recent plurality of the U.S. Supreme Court, the danger that federal taxes will “crowd out” state revenues justifies aggressive judicial limits on the conditions attached to federal spending. Economic theory offers a number of reasons to believe the opposite: federal revenue increases may also float state boats. To test these competing claims, I examine for the first time the relationship between total federal revenues and state revenues. I find that, contra the NFIB plurality, increases in federal revenue -- controlling, of course, for economic performance and other factors -- are associated with a large and statistically significant increase in state revenues
This version of the study additionally provides extensive background explanations of underlying economic concepts for readers unfamiliar with the prior public finance literature
Future Oversight of Recombinant DNA Research: Recommendations of an Institute of Medicine Committee
Get PDFThe National Institutes of Health (NIH) established the Recombinant DNA Advisory Committee (RAC) in 1974 in response to public concerns about the safety of manipulating genetic material through recombinant DNA. The accumulation of 40 years of experience with gene transfer research has led to a better understanding of the risks. Yet, as gene transfer research has matured, the complexity of the overall regulatory environment has remained. Gene transfer research continues to be subjected to multiple layers of review: the Food and Drug Administration (FDA), institutional review boards, institutional biosafety committees, and the RAC. It is within the context of overlapping regulatory authority and improved scientific understanding and social acceptance that the NIH commissioned the Institute of Medicine (IOM) to assess whether gene transfer research continues to warrant additional oversight.
The overarching goal of the IOM was to ensure patient safety and the ethical conduct of research, while not subjecting scientists to unnecessary regulatory burdens, which can impede or delay scientific exploration and medical innovation. The IOM Committee recommended that the RAC should review individual protocols only if other regulatory authorities could not adequately do so, and the study meets one of the following criteria: (1) the protocol uses a new vector, genetic material, or delivery methodology representing a first-in-human experience; (2) the protocol relies on preclinical safety data obtained using a new preclinical model system of unknown and unconfirmed value; or (3) the protocol involves a vector, gene construct, or method of delivery associated with possible toxicities that are not widely known.
Gene transfer research no longer stands alone as the only human application of an emerging technology that could benefit from additional oversight. Consequently, the IOM Committee recommended that the NIH Director charge a standing or new committee to examine the need for additional or different oversight for clinical applications of emerging novel technologies
Efficient Breach
Get PDFThe theory of efficient breach is the best known, and the most controversial, product of nearly half a century of economic analysis of contract law. In its simplest form, which is the one that dominates the legal imagination, the theory argues that expectation damages are good because they allow, even encourage, a party to breach when performance becomes inefficient, thereby increasing social welfare. Many noneconomists assume the theory is well supported by principles of neoclassical economics. Thus critics commonly focus on the theory’s moral failings, or on problems with the neoclassical approach more generally. But today no economic thinker defends the simple theory of efficient breach. Forty years of scholarship has established that even from the streamlined perspective of neoclassical economics, the simple theory simplifies too much. Expectation damages do not sufficiently deter some types of opportunistic breach. When a contract does become inefficient, other remedies can do as good or better a job of allowing parties to avoid performance. If expectation damages do provide efficient performance incentives, they might create inefficient incentives elsewhere in the transaction. And an exclusive focus on incentives ignores other welfare-enhancing functions remedies can serve, such as risk allocation and signaling. Many noneconomic critics of efficient breach criticize a theory that no economist would defend.
All this notwithstanding, contract theorists should pay attention to efficient breach. Most importantly, a revised theory of efficient breach demonstrates how remedies that apply at the end of a transaction can affect the terms chosen at its birth. In many transactions the remedy is likely to affect the price, complicating arguments about its fairness. Many parties are likely to prefer efficient remedies, posing a challenge to remedial theories that ignore efficiency altogether. And economic analysis suggest mechanisms lawmakers can use to delegate remedial choice to the parties while still giving weight to socially preferred remedies. Theorists who make principled arguments for one or another remedy should attend to economic analyses of remedial design, including the idea of efficient breach, which cast new light on these distinctive features of contract law
Pandemic Disease, Biological Weapons, and War
Get PDFOver the past two decades, concern about the threat posed by biological weapons has grown. Biowarfare is not new. But prior to the recent trend, the threat largely centered on state use of such weapons. What changed with the end of the Cold War was the growing apprehension that materials and knowledge would proliferate beyond industrialized states’ control, and that “rogue states” or nonstate actors would acquire and use biological weapons. Accordingly, in 1993 senators Samuel Nunn, Richard Lugar, and Pete Dominici expanded the Cooperative Threat Reduction Program to assist the former Soviet republics in securing biological agents and weapons knowledge. The Defense Against Weapons of Mass Destruction Act gave the Pentagon lead agency responsibility. Senator Lugar explained, “[B]iological weapons, materials, and know-how are now more available to terrorists and rogue nations than at any other time in our history.” The United States was not equipped to manage the crisis.
The actual acquisition of unconventional weapons by nonstate actors augmented concern. In 1984, for instance, the Rajneesh cult in Oregon sought to prevent the local community from being able to vote against its land development plans. The group contaminated local salad bars with Salmonella typhimurium, infecting 751 people. In 1995 Aum Shinrikyo released a sarin nerve gas attack on the Tokyo subway, killing twelve people. And in 1998 an American citizen, Larry Wayne Harris, obtained plague and anthrax (a vaccine strain) and isolated several other dangerous bacteria. His aim was to disseminate biological agents on U.S. soil, using a cropduster, to alert the U.S. government to the Iraqi biological weapons threat, and to create a separate homeland for whites.
These and similar incidents pointed to an alarming trend: from previously a dozen or so investigations per year, in 1997, the FBI opened 74 investigations related to the possible acquisition and use of chemical, biological, radiological, or nuclear materials. The following year, it investigated 181 possible incidents. Eighty percent of the cases turned out to be hoaxes, but a significant number represented unsuccessful attacks. By January 31, 1999, Monterey Institute for International Studies had compiled an open-source data base of 415 such incidents—most of which occurred toward the end of the twentieth century—where terrorists had sought to acquire or use weapons of mass destruction
Judgment Day for Fraud-on-the-Market: Reflections on \u3ci\u3eAmgen\u3c/i\u3e and the Second Coming of \u3ci\u3eHalliburton\u3c/i\u3e
Get PDFThe Supreme Court has reaffirmed the fraud on the market presumption of reliance, facilitating large scale class actions for this kind of securities fraud. This essay traces the road from its decision last year in Amgen to this year\u27s reaffirmation in Halliburton II, and considers some of the issues that will emerge as lower courts struggle with Halliburton II\u27s secondary holding--that the issue of price impact is crucial to class certification, even if the burden of proof is on the defendants
Ebola: A Crisis in Global Health Leadership
Get PDFAt the core of the present Ebola crisis in West Africa is a lack of global health leadership. WHO should be the global health leader, following its constitutional charge, yet it is significantly under-resourced, having a direct effect on its rapid response capacity. The Organization\u27s response to this crisis has been constantly behind, from low funding appeals to its delay in declaring this outbreak to be a Public Health Emergency of International Concern under the binding International Health Regulations (2005) (IHR). The IHR themselves have proven insufficient, as countries have failed to cooperate in building the public health capacities that the IHR requires, reflecting the absence of incentives, sanctions, or a clear allocation of responsibility.
The United States and United Nations have sought to fill this leadership vacuum. The United States is deploying military assets to utilize their logistics, engineering, and similar capacities. Yet a single state cannot fill the significant governance gaps, mobilizing and coordinating global efforts. The United Nations has now assumed this leadership role. The UN Security Council\u27s resolution has raised the political profile in a way that WHO could not even as the resolution left unclear the exact duties required of states. The UN Secretary-General initiated the UN Mission for Ebola Emergency Response.
Going forward, the United Nations must maintain its leadership, from the Security-General identifying states that fail to contribute fairly to the global response -- or that strip other health and development funding to do so -- to the Security Council being prepared to pass another resolution, this one with unambiguous binding authority and clear allocation of responsibility. Looking further ahead, the Security Council should interpret its mandate for maintaining international peace and security broadly, encompassing human security. States should give WHO the funding and other support the Organization requires, as WHO undertakes reforms necessary for it to be a global health leader. The UN Secretary-General and WHO Director-General should establish an independent commission to comprehensively review the response and recommend what is needed to prevent future global health emergencies. National and institutional leaders must respond to Ebola by enacting the far-reaching reforms required for genuine global health leadership, exercising the political will and leadership whose absence enabled the current Ebola outbreak to turn into a global crisis