3394 research outputs found
Sort by
The New Roaring Twenties: The Progressive Agenda for Antitrust and Consumer Protection Law
Get PDFIt is an opportune moment to consider the trajectory of antitrust law in the United States. We are witnessing today an inflection point in both federal and state antitrust enforcement and a growing skepticism by courts of the doctrinal orthodoxy that has characterized the antitrust jurisprudence of the last half century
Q&A with Lina Khan, Chair of the U.S. Federal Trade Commission and Mark Glick, Professor of Economics at the University of Utah
Get PDFWhy Economists Should Support Populist Antitrust Goals
Get PDFAntitrust policy can be a powerful tool to tackle important social and economic problems. For decades antitrust enforcement has been shackled by the so-called Consumer Welfare Standard (“CWS”) that has limited the goals considered to be “legitimate.” The CWS limits antitrust goals to those that impact demand in markets, and primarily in output markets. Recently, new voices have come forward to suggest that antitrust policy should address several other important social objectives. Such goals include the traditional antitrust goals that motivated passage of the antitrust statutes, and which were discussed in Pre-Rehnquist Court opinions, including dispersion of economic and political power, and protection of small business. Additionally, it has been suggested that antitrust law should contribute to alleviating inequality, protecting labor when mergers occur or in the presence of monopsony, protect macroeconomic growth and stability when financial entities merge, and possibly contribute to efforts to advance sustainability. While some argue that the CWS is flexible enough to support some or all of these objectives, we disagree. There are at least five reasons why the CWS is severely limited or defective, preventing it from being an appropriate standard for modern antitrust. First (Section III below), it is a “material welfare” approach derived from Alfred Marshall, meaning an approach that cannot incorporate important issues that affect welfare such as political democracy and sustainability. This is made clear in the writings of Marshall and Pigou, the originators of the theory imported into antitrust by Judge Bork. Second (Section IV), the CWS assumes that the marginal utility of money (or the marginal social welfare with respect to a change in anyone’s surplus) is constant and equal among individuals impacted by anticompetitive practices. As a consequence, the CWS treats as inconsequential transfers of income between groups resulting from alleged restraints or mergers. Third (Section V), CWS is biased in favor of the wealthy, despite Section IV’s findings that CWS is neutral with respect to marginal transfers. Fourth (Section VI), CWS uses an indefensible measure of efficiency. Fifth (Section VII), CWS ignores the input market when analyzing restraints in the output market.We suggest that there are three questions that must be addressed when considering an antitrust criterion. First: is there credible social science research showing that the policy goals embodied in the criterion result in material increases in human well-being (the basis of economic welfare)? Second: can competition policy substantially advance the criterion? Finally, does the criterion provide a method for dealing with tradeoffs between the goals it embodies, if such tradeoffs are present? The CWS is so seriously limited that it does not even allow consideration of the first requirement. A more general welfare approach certainly can address the first two questions and may hold promise for satisfying the third
Holding Enablers of Child Sexual Abuse Accountable: The Case of Jeremy Bell
Get PDFIn the United States, 1 in every 5 women and 1 in every 13 men report being sexually abused as a child. Of the child sexual abuse that occurs during the K-12 years, much of it is aided and abetted by those in positions of authority who look the other way when abuse is known or suspected. This article uses the novel approach of holding not just the perpetrators of child sexual abuse accountable for these crimes, but also those who enable their criminal acts by failing to report suspicious behaviors or witnessed accounts of abuse. No case in more indicative of the tragic repercussions of failing to report abuse - particularly by those who are mandated to do so - than the case of Jeremy Bell, a child who had been sexually abused and ultimately murdered by his teacher, Edgar Friedrichs, in 1997. By recounting the story of Jeremy’s murder, the circumstances surrounding the crime, and the damage inflicted on Friedrichs’ many victims and their families, this article seeks to make a compelling argument for criminalizing enablers beyond the relatively mild penalties written into the laws that currently address this issue across the 50 states
Police Secrecy Exceptionalism
Get PDFEvery state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up.
This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with case law and public records datasets, to illuminate the ways that judges, legislators, and police officers use transparency statutes to shield law enforcement agencies from public view. It argues that this robust web of police secrecy protections operates as a kind of police secrecy exceptionalism, analogous in some ways to the exceptional protections granted to national security secrets in the federal context.
The Article then examines the doctrinal and policy-oriented underpinnings of this exceptional treatment, finding that these arguments generally fall into one of three buckets: protection against circumvention of the law, protection of citizen or police officer privacy, and preservation of the effectiveness or efficiency of policing. It concludes that none of these defenses justify the extraordinary informational protections currently extended to law enforcement agencies. Moreover, these secrecy protections impose substantial harms. By excavating these overlooked mechanisms of police secrecy, the Article illuminates new avenues of legal reform
The Fall of FDA Review
Get PDFThe U.S. Food and Drug Administration (FDA) is in crisis. FDA can hardly go a single day without an investigation, negative news story, or scholarly critique of the agency’s work. We have increasingly entrusted FDA—today, to the tune of 25% of the U.S. economy—with vetting the products we put in and on our bodies. But the array of problems facing the agency raises questions about whether it is equipped to succeed in the 21st century.
FDA’s core function is to oversee a special legal regime called “premarket review.” Congress has prohibited all marketing of certain types of products (like drugs) until FDA reviews and approves an application from the manufacturer. This system allows consumers to depend on the foods they ingest, the pills they swallow, and the health care they receive—in theory. But critics have documented how FDA review failures have produced, or contributed to, public health crises, including those related to opioids, e-cigarettes, trans fats, sugar, and, most recently, the COVID-19 pandemic.
Leveraging five FDA product areas, this Article argues that premarket review is faltering. The reasons vary somewhat across FDA’s regulatory regimes. However, the bottom line is the same: longstanding efforts to undermine FDA governance by corporations and financial power writ large. Corporate deregulatory efforts have operated through courts, Congress, the President, and the agency’s leadership itself. In some cases, premarket review has been so hollowed out that all that remains is the illusion of regulation, nothing more. These developments reflect the ascendancy of neoliberalism, a system in which core social guarantees devolve to decisions by individual consumers.
We need not accept this state of affairs. Learning from the mechanisms behind premarket review’s erosion, this Article proposes a suite of structural solutions to build a revitalized FDA: one that is dutifully empowered, inside and out, to safeguard the public health
Why Stop Grazing the Climate Commons?
Get PDFMany have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.
Is the number of climate suckers growing exponentially, or is there more going on? This Article proposes an alternative explanation. A growing and substantial part of the climate crisis is not subject to the tragedy of the commons, allowing rational actors to take climate action because of their self-interests, not despite them.
While the ability to rely on unilateral action to make some climate progress unlocks exciting possibilities, effectively confronting climate change requires a better understanding of why unilateral actors act. This Article exposes the economic and political incentives that frequently drive unilateral action. Understanding the incentives of unilateral actors opens two promising inroads for climate action: strengthening unilateral action by playing to these incentives and building on unilateral action to make collective action more obtainable
Know-How
No full textWhile know-how licenses around the world often define know-how as encompassing both secret and non-secret information, the TTBER exemption only covers know-how while it remains secret, irrespective of how it may be defined in the underlying agreement. This seeming discrepancy appears to exist because the term ‘know-how’ functions in the TTBER as a stand-in for the term ‘trade secret’, a form of IP that was not generally recognized under this name in the EU until the adoption in 2016 of the European Trade Secrecy Directive, No. 2016/943. As a result, licenses of non-secret know-how under Article 101 do not appear to benefit from the TTBER exemption and would be analysed directly under Article 101
At the Nexus of Antitrust & Consumer Protection
Get PDFThis Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of law as aiming to prevent powerful players from using their power to manipulate conditions in their favor and away from a more general (though contested) notion of the public interest. Implications of each view for the application of Section 5 are explored, with attention to the case law surrounding each area of doctrine
An Intersectional Examination of U.S. Civil Justice Problems
Get PDFMillions of Americans face civil justice problems each year, and most of these problems never make it to court, let alone to a legal expert. Although research has established that race and class are associated with a person’s chance of experiencing a civil justice problem, detailed intersectional examinations of everyday people’s justice experiences are largely absent. A more in-depth empirical understanding of the access to justice crisis can equip lawyers, policymakers, and other designers of justice interventions to create higher-impact, more efficient, and bettertargeted programs to meet the justice needs of everyday people.
This Article fills a critical gap in the access to justice research. Using data from a representative sample of over 3,600 Americans, we conduct a granular analysis of the factors associated with the most common civil justice problems in the United States. We illuminate the scope of inequities in everyday legal experiences, point to key paths of legal and policy intervention, and show the importance of intersectional factors in understanding diverse needs for access to justice solutions. In addition to investigating how gender, race, age, and class shape people’s chances of facing a civil justice problem, we investigate several less-examined characteristics: queerness, disability, rurality, parental status, and experiences of trauma. These identities turn out to be significantly correlated with civil justice needs as well—independent from, and in addition to, race, class, and gender. We show that the kinds of civil justice problems vulnerable populations face are not always intuitive and often transcend people’s status as members of a particular population. We also use predicted probabilities to reveal enormous disparities in civil justice problems within groups that extant research has generally treated as monolithic—for example, showing that accounting for other identities and experiences can predict whether a low-income Black American has a 6% chance or a 45% chance of facing a family structure problem in the past year.
To shrink the U.S. civil justice gap, we need a more detailed picture of the landscape of civil justice problems experienced by everyday Americans. This Article provides that picture and is intended to serve as a springboard for access to justice policy reform