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For Corporate Hypocrisy
Full text linkDisgusting. Deplorable. Manipulative. Sinful. Irresponsible. Repugnant. Amoral. Appalling. Unethical. Just plain sick. Those are some of the words used to describe hypocrisy. Even in a polarized environment, one of the things about which we all seem to agree is that hypocrisy is bad. And corporate hypocrisy is particularly abhorrent. From Amazon’s hypocrisy regarding its commitment to workers, to Starbucks’ hypocrisy around its condemnation of racism, to AT&T’s hypocrisy associated with its support of voting rights, corporations perceived to be engaging in hypocrisy have been subjected to a special brand of protests and outrage. We judge corporate hypocrisy more harshly than individual hypocrisy. We also judge the corporate hypocrite more harshly than the corporation that engages in concerning behavior but does not make statements inconsistent with such behavior. Hypocrisy, especially corporate hypocrisy, has even been called the “only unforgivable sin
Philadelphia\u27s Prolonged Youth-Detention Problem: A Survey of Potential Legal Challenges
Full text linkThe Future of Antitrust Populism
Full text linkPopulism has staked its claim in American antitrust policy. While it has not yet significantly influenced the federal judiciary, it does have a presence in the antitrust enforcement Agencies. At this point, however, the populist antimonopoly movement has provided few new ideas. Rather, it has exhumed discarded policies, such as moving merger law back to the 1960s, reviving the Robinson-Patman Act of the 1930s-1970s, reinstating aggressive per se rules against vertical restraints that were in force in the 1960s and 1970s, disinterring concentrated industry proposals from the 1960s,and even returning antitrust policy to some imagined former state that was ignorant of economics. This movement needs to evolve if it is to survive. This should be an important economic concern of the next Administration. While antitrust needs to become more pro-enforcement, it can accomplish that without nostalgic and reactionary returns to an imagined past. Increases in enforcement should be empirically justified, with a focus on practices that provably reduce output and increase price, reduce product quality, or restrain innovation. Populism stands as a significant obstruction to achieving those goals, which requires embracing new realities, not clinging to old ones. When the current anti-monopoly movement makes that move, it will have become progressive
Taxation and Expropriation in International Investment Arbitration
No full textIn recent decades, there has been a significant increase in the number of international investment arbitration cases involving disputes over taxation. As taxation measures are a core part of the State’s inherent police power, there are extensive debates regarding the criteria for when an investment treaty obligation is violated and how to balance States’ police power to tax with protection of foreign investors’ interests. As most investment treaties do not exempt taxation-related expropriation claims, taxation cases often include a claim that the host State has indirectly expropriated the investment interest through the taxation-related measures. This Article conducts an extensive analysis and examination of investor-state dispute settlement (“ISDS”) cases involving indirect expropriation claims targeting host States’ taxation measures and shows that taxation-related claims generally fall within three regulatory spaces. The examination of these cases also shows that ISDS tribunals have adopted quite divergent approaches when assessing taxation-related expropriation claims, namely, the “qualified police power” approach, the “sole effects” approach, and the “fact-based, case-by-case, cumulative” approach. In order to resolve the discrepancy and uncertainty existing in current arbitral jurisprudence, this Article proposes a “Two-Prong” methodology to conduct expropriation analysis using the restructured “Balanced Effects & Police Power” approach, with the first prong using the redefined “effects” test to assess whether there is a level of interference amounting to substantial deprivation of investors’ investment interests and the second prong utilizing the “qualified police power” doctrine to assess whether the interference amounts to compensable expropriation
Public Patent Powers
Full text linkCongress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many of these powers, but they have been reluctant to use others. Notably, agencies have refused to grant licenses on patents covering federally funded drugs, despite multiple requests to do so. The descriptive account of public patent powers has several implications for patent regulation. The landscape of public patent powers shows different actions that the Executive Branch could take without the need for any legislative action when patents create policy concerns, as is currently happening with high drug prices. Themes in public patent powers and their use also reveal consistent policy judgments that have been present throughout the history of patent regulation in the United States. These themes create a framework for identifying contexts where executive control over patents may be appropriate and politically feasible. The descriptive account also suggests that the Supreme Court’s decision in Oil States v. Greene’s Energy may have broader implications than previously recognized. Moving forward, this Article contends that the Executive Branch should create an interagency framework to guide how agencies use public patent powers and that courts should consider themes in public patent powers when deciding whether to grant injunctions in patent cases
Challenging Legacy Discrimination: The Persistence of School Pushout as Racial Subordination
Full text linkPrior legal scholarship has described the school-to-prison pipeline as originating in the “zero-tolerance” school discipline policies of the 1980s and 1990s. This Article shows that, in fact, it originated in resistance to school desegregation. The initial rise in exclusionary school discipline in the U.S. began in the late 1960s, in reaction to federal efforts to enforce school desegregation orders. Across the country, school districts forced to desegregate adopted subjective school disciplinary policies, then deployed those policies to disproportionately exclude Black students from the newly desegregated schools. The racially disparate use of school discipline received national attention during the 1970s through several pathbreaking reports that used the term “pushout” to describe how large numbers of Black students experienced repeated suspension and expulsion, eventually leading them to leave school entirely. In a story that has not yet been told in legal scholarship, I describe how civil rights advocates pushed the Office for Civil Rights to address school discipline as part of its duty to prosecute discrimination. Today’s facially race-neutral school discipline policies are thus rooted in a history of intentional racial exclusion. Although resistance to desegregation may not be the conscious motive behind suspension and expulsion of Black students, the legacy of this history persists through attitudinal and institutional infrastructure that originally developed to counter integration, and that persist today. I argue that these attitudes and policies constitute what I term “legacy discrimination” that has evolved to prevent Black students from accessing their education on terms equal to white students. Exclusionary school discipline serves both as a mechanism for excluding Black students and simultaneously as a facially neutral basis for justifying their exclusion and sustaining the myth of white supremacy. Understanding today’s school discipline practices as legacy discrimination reveals the inadequacy of current antidiscrimination law, but also creates pathways to address exclusionary discipline within a broader movement for racial justice in schools
