This Essay considers how the Opportunity Zones law could be amended to promote affordable housing development, and it evaluates whether policymakers should adopt such amendments. This Essay identifies several legal and practical barriers to the use of Opportunity Funds to finance affordable housing development, including through twinning with the LIHTC. These barriers include: substantial improvement rules that present barriers to affordable housing rehabilitation; basis rules that present barriers to new construction deals with low debt-to-equity ratios; strict timing rules that may not align with the realities of affordable housing construction; limits on nonqualified financial property holdings that may foreclose common affordable housing development structures; and differences in the identity and motivations of the investors who typically participate in Opportunity Zones deals versus LIHTC deals. Many—but not all—of these barriers could be reduced through statutory amendments. But should Congress adopt these reforms? This Essay argues that to the extent affordable housing development is being driven by the LIHTC, the practice of LIHTC-OZ twinning is an inefficient waste of government subsidies. Since it is unclear whether the potentially larger pool of Opportunity Zones investors will increase the affordable housing supply under such circumstances, policymakers considering reforms to increase LIHTC-OZ twinning should proceed with caution.
{"title":"Financing Affordable Housing Through Opportunity Funds","authors":"Michelle D. Layser","doi":"10.2139/ssrn.3923665","DOIUrl":"https://doi.org/10.2139/ssrn.3923665","url":null,"abstract":"This Essay considers how the Opportunity Zones law could be amended to promote affordable housing development, and it evaluates whether policymakers should adopt such amendments. This Essay identifies several legal and practical barriers to the use of Opportunity Funds to finance affordable housing development, including through twinning with the LIHTC. These barriers include: substantial improvement rules that present barriers to affordable housing rehabilitation; basis rules that present barriers to new construction deals with low debt-to-equity ratios; strict timing rules that may not align with the realities of affordable housing construction; limits on nonqualified financial property holdings that may foreclose common affordable housing development structures; and differences in the identity and motivations of the investors who typically participate in Opportunity Zones deals versus LIHTC deals. Many—but not all—of these barriers could be reduced through statutory amendments. But should Congress adopt these reforms? This Essay argues that to the extent affordable housing development is being driven by the LIHTC, the practice of LIHTC-OZ twinning is an inefficient waste of government subsidies. Since it is unclear whether the potentially larger pool of Opportunity Zones investors will increase the affordable housing supply under such circumstances, policymakers considering reforms to increase LIHTC-OZ twinning should proceed with caution.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129189563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Place-based tax incentives, such as the New Markets Tax Credit (NMTC) and Opportunity Zones incentives, are often used to promote investment in low-income neighborhoods. However, not all low-income neighborhoods have an equal need for investment subsidies. Subsidies for investment in already gentrifying neighborhoods, for example, may reflect inefficient inframarginal investment, and they may lead to inequitable outcomes. Critics fear that when gentrifying neighborhoods are eligible for tax incentives, they will draw investment away from the neighborhoods that need it most. However, few studies have provided empirical analysis to assess whether these concerns have merit. Through a novel geospatial analysis of the location patterns of tax-subsidized projects, this Article provides new evidence that critics’ concerns are justified. This Article analyzes 15 years of NMTC data to explore the location patterns of tax-subsidized projects in 20 U.S. cities. It employs two spatial analysis methods, quadrat density analysis and negative binomial regression analysis, to describe the location patterns of NMTC projects and their relationship to two variables known to correlate with gentrification: high vacancy rates and increasing rental rates. The quadrat density analysis reveals that, in most cities, NMTC project density is highest in eligible census tracts that had high vacancy rates, increasing rents, or both. The results of the negative binomial regression analysis confirmed that, in many cities, high vacancy rates or rent increases were statistically significant predictors of NMTC investment. Together, these results provide new evidence that gentrifying census tracts may draw tax-subsidized investment away from other eligible areas. They also suggest that a commonly proposed Opportunity Zones reform—to add statutory safeguards modeled after those in the NMTC—would fail to prevent tax-subsidized investment in places that are already gentrifying. The observed spatial patterns reflect inefficient allocations, limit the NMTC program’s ability to promote equitable change, and cast doubt about whether federal regulators can effectively shape program outcomes. Opportunity Zones are likely to have similarly inefficient and inequitable outcomes. Therefore, this Article argues that statutory and administrative reforms are necessary to reduce the frequency at which tax incentives are used to subsidize investment in neighborhoods that are already gentrifying. This study has profound implications for the $5 billion per year federal NMTC program, the $3.5 billion per year federal Opportunity Zones program, and state-level tax incentives modeled after these federal tax laws.
{"title":"Subsidizing Gentrification: A Spatial Analysis of Place-Based Tax Incentives","authors":"Michelle D. Layser","doi":"10.2139/ssrn.3793209","DOIUrl":"https://doi.org/10.2139/ssrn.3793209","url":null,"abstract":"Place-based tax incentives, such as the New Markets Tax Credit (NMTC) and Opportunity Zones incentives, are often used to promote investment in low-income neighborhoods. However, not all low-income neighborhoods have an equal need for investment subsidies. Subsidies for investment in already gentrifying neighborhoods, for example, may reflect inefficient inframarginal investment, and they may lead to inequitable outcomes. Critics fear that when gentrifying neighborhoods are eligible for tax incentives, they will draw investment away from the neighborhoods that need it most. However, few studies have provided empirical analysis to assess whether these concerns have merit. Through a novel geospatial analysis of the location patterns of tax-subsidized projects, this Article provides new evidence that critics’ concerns are justified. \u0000 \u0000This Article analyzes 15 years of NMTC data to explore the location patterns of tax-subsidized projects in 20 U.S. cities. It employs two spatial analysis methods, quadrat density analysis and negative binomial regression analysis, to describe the location patterns of NMTC projects and their relationship to two variables known to correlate with gentrification: high vacancy rates and increasing rental rates. The quadrat density analysis reveals that, in most cities, NMTC project density is highest in eligible census tracts that had high vacancy rates, increasing rents, or both. The results of the negative binomial regression analysis confirmed that, in many cities, high vacancy rates or rent increases were statistically significant predictors of NMTC investment. Together, these results provide new evidence that gentrifying census tracts may draw tax-subsidized investment away from other eligible areas. They also suggest that a commonly proposed Opportunity Zones reform—to add statutory safeguards modeled after those in the NMTC—would fail to prevent tax-subsidized investment in places that are already gentrifying. \u0000 \u0000The observed spatial patterns reflect inefficient allocations, limit the NMTC program’s ability to promote equitable change, and cast doubt about whether federal regulators can effectively shape program outcomes. Opportunity Zones are likely to have similarly inefficient and inequitable outcomes. Therefore, this Article argues that statutory and administrative reforms are necessary to reduce the frequency at which tax incentives are used to subsidize investment in neighborhoods that are already gentrifying. This study has profound implications for the $5 billion per year federal NMTC program, the $3.5 billion per year federal Opportunity Zones program, and state-level tax incentives modeled after these federal tax laws.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125911700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-16DOI: 10.52214/CBLR.V2020I1.7159
Jeremy McClane
For many years corporate lenders have been a crucial force in the boardroom, providing a check on management and con- tributing to firm governance. However, as this Article docu- ments, lenders’ influence has receded in recent years for a large and important class of corporate borrowers. The culprit is a familiar one in a less familiar guise: the sale of loans by origi- nating banks for securitization—like that which gained noto- riety with pre-financial crisis mortgage-backed securities, but now are deployed in the market for corporate loans. As this Ar- ticle points out, the shift from relationship lending to arms- length securitization has the potential to intensify moral haz- ard, leading banks to provide less monitoring for their highly securitized clients. Recent data supports this narrative of debt governance dereliction with potentially enormous conse- quences: it heralds the disappearance of an important source of fiscal discipline and governance at a moment when U.S. cor- porations carry more debt than at any time in history (totaling half of U.S. gross domestic product), and an economic crisis threatens to expose companies whose debt has been poorly managed. This Article presents a theoretical and empirical examina- tion of the dramatic change in creditor corporate governance and its implications. It shows how the diminishment of lend- ers’ role in governance is a predictable result of a confluence of forces in the financial markets, in particular, the use of struc- tured finance to securitize loans, which in turn has driven a lending market with diminishing checks on borrower profli- gacy. It also shows how this new market is weakening govern- ance norms in ways that are harmful to borrowing companies, lenders, and society as a whole. The Article makes two contributions to the literature. First, it empirically documents the decline of lenders’ corporate gov- ernance interventions, cataloging original data on all borrower loan covenant violations—a primary mechanism by which lenders intervene in governance—from 2008 through 2018. Second, although many scholars have written about lenders’ role in corporate governance and securitization separately, this Article brings the two together. It thereby adds a missing com- ponent to an important literature by showing how corporate governance and the financial system affect each other, and pro- posing solutions to bolster both.
{"title":"Reconsidering Creditor Governance in a Time of Financial Alchemy: Appendix","authors":"Jeremy McClane","doi":"10.52214/CBLR.V2020I1.7159","DOIUrl":"https://doi.org/10.52214/CBLR.V2020I1.7159","url":null,"abstract":"\u0000 \u0000 \u0000For many years corporate lenders have been a crucial force in the boardroom, providing a check on management and con- tributing to firm governance. However, as this Article docu- ments, lenders’ influence has receded in recent years for a large and important class of corporate borrowers. The culprit is a familiar one in a less familiar guise: the sale of loans by origi- nating banks for securitization—like that which gained noto- riety with pre-financial crisis mortgage-backed securities, but now are deployed in the market for corporate loans. As this Ar- ticle points out, the shift from relationship lending to arms- length securitization has the potential to intensify moral haz- ard, leading banks to provide less monitoring for their highly securitized clients. Recent data supports this narrative of debt governance dereliction with potentially enormous conse- quences: it heralds the disappearance of an important source of fiscal discipline and governance at a moment when U.S. cor- porations carry more debt than at any time in history (totaling half of U.S. gross domestic product), and an economic crisis threatens to expose companies whose debt has been poorly managed. \u0000 \u0000 \u0000 \u0000This Article presents a theoretical and empirical examina- tion of the dramatic change in creditor corporate governance and its implications. It shows how the diminishment of lend- ers’ role in governance is a predictable result of a confluence of forces in the financial markets, in particular, the use of struc- tured finance to securitize loans, which in turn has driven a lending market with diminishing checks on borrower profli- gacy. It also shows how this new market is weakening govern- ance norms in ways that are harmful to borrowing companies, lenders, and society as a whole. \u0000The Article makes two contributions to the literature. First, it empirically documents the decline of lenders’ corporate gov- ernance interventions, cataloging original data on all borrower loan covenant violations—a primary mechanism by which lenders intervene in governance—from 2008 through 2018. Second, although many scholars have written about lenders’ role in corporate governance and securitization separately, this Article brings the two together. It thereby adds a missing com- ponent to an important literature by showing how corporate governance and the financial system affect each other, and pro- posing solutions to bolster both. \u0000 \u0000 \u0000 \u0000 \u0000 \u0000","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114657091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Place-based tax incentives are frequently used by governments to encourage investment in low-income areas. But no standard exists to describe the ideal place-based tax incentive, making evaluation of these programs nearly impossible. This Article provides the necessary baseline by explaining when, where, and how to design place-based tax incentives that can benefit low-income communities by reducing geographic inequality. Using Geospatial Information System (GIS) mapping methods, this Article demonstrates how lawmakers can use public data to map spatial disadvantage. It then draws on tax theory to show how to design place-based tax incentives to reduce geographic inequality in targeted areas. The result is not a one-size-fits-all prescription, but a place-specific approach that can help place-based tax incentives become an effective vehicle for reducing underlying, geographic causes of neighborhood disadvantage. Comparing current place-based tax incentives to this baseline reveals that a significant weakness of current approaches is their failure to target places with geographic inequality or promote activities that could reduce it.
{"title":"How Place-Based Tax Incentives Can Reduce Geographic Inequality","authors":"Michelle D. Layser","doi":"10.2139/ssrn.3516469","DOIUrl":"https://doi.org/10.2139/ssrn.3516469","url":null,"abstract":"Place-based tax incentives are frequently used by governments to encourage investment in low-income areas. But no standard exists to describe the ideal place-based tax incentive, making evaluation of these programs nearly impossible. This Article provides the necessary baseline by explaining when, where, and how to design place-based tax incentives that can benefit low-income communities by reducing geographic inequality. Using Geospatial Information System (GIS) mapping methods, this Article demonstrates how lawmakers can use public data to map spatial disadvantage. It then draws on tax theory to show how to design place-based tax incentives to reduce geographic inequality in targeted areas. The result is not a one-size-fits-all prescription, but a place-specific approach that can help place-based tax incentives become an effective vehicle for reducing underlying, geographic causes of neighborhood disadvantage. Comparing current place-based tax incentives to this baseline reveals that a significant weakness of current approaches is their failure to target places with geographic inequality or promote activities that could reduce it.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"11948 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126740653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This amicus brief was filed in Anderson v. Credit One Bank, No. 16-2496 (2d. Cir.). The brief explains why a debtor's claim for violation of the bankruptcy discharge injunction is not subject to a predispute arbitration agreement. The brief makes three arguments: (1) the history of the bankruptcy discharge shows Congress intentionally chose injunctive relief to enforce the bankruptcy discharge; (2) the bankruptcy discharge and discharge injunction are not "claims" against which an arbitration agreement can operate; and (3) the discharge injunction is a central piece of the Bankruptcy Code that inherently conflicts with the Federal Arbitration Act.
{"title":"Amicus Brief on Arbitrability of the Discharge (Anderson v. Credit One Bank)","authors":"R. Brubaker, Robert M. Lawless, Bruce A. Markell","doi":"10.2139/SSRN.2925494","DOIUrl":"https://doi.org/10.2139/SSRN.2925494","url":null,"abstract":"This amicus brief was filed in Anderson v. Credit One Bank, No. 16-2496 (2d. Cir.). The brief explains why a debtor's claim for violation of the bankruptcy discharge injunction is not subject to a predispute arbitration agreement. The brief makes three arguments: (1) the history of the bankruptcy discharge shows Congress intentionally chose injunctive relief to enforce the bankruptcy discharge; (2) the bankruptcy discharge and discharge injunction are not \"claims\" against which an arbitration agreement can operate; and (3) the discharge injunction is a central piece of the Bankruptcy Code that inherently conflicts with the Federal Arbitration Act.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130303535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
D. Hyman, David J. Franklyn, C. Yee, Mohammad H. Rahmati
Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online. The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising. We explore whether respondents can distinguish native advertising and “regular” ads from unpaid content, using 16 native ads, 5 “regular” ads, and 8 examples of news/editorial content, drawn from multiple sources and platforms. Overall, only 37% of respondents thought that the tested examples of native advertising were paid content, compared to 81% for “regular” advertising, with substantial variation by platform, advertiser, and labeling. Modest labeling changes materially increased the number of respondents that correctly recognized that native ads are paid content – but even these improved results fell well short of those for “regular” advertising. We also explored labeling preferences and self-reported concern about native advertising. Our findings indicate that native advertising involves a significant risk of deception which self-regulation has not addressed.
{"title":"Going Native: Can Consumers Recognize Native Advertising? Does it Matter?","authors":"D. Hyman, David J. Franklyn, C. Yee, Mohammad H. Rahmati","doi":"10.2139/SSRN.2816655","DOIUrl":"https://doi.org/10.2139/SSRN.2816655","url":null,"abstract":"Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online. The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising. We explore whether respondents can distinguish native advertising and “regular” ads from unpaid content, using 16 native ads, 5 “regular” ads, and 8 examples of news/editorial content, drawn from multiple sources and platforms. Overall, only 37% of respondents thought that the tested examples of native advertising were paid content, compared to 81% for “regular” advertising, with substantial variation by platform, advertiser, and labeling. Modest labeling changes materially increased the number of respondents that correctly recognized that native ads are paid content – but even these improved results fell well short of those for “regular” advertising. We also explored labeling preferences and self-reported concern about native advertising. Our findings indicate that native advertising involves a significant risk of deception which self-regulation has not addressed.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126307189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Worldwide, there are approximately 130 jurisdictions with competition laws. The governmental entities charged with enforcing these laws are typically called “competition agencies,” but many of these entities do things other than competition law. Of the 36 agencies listed in the Global Competition Review’s 2015 annual review, half have responsibilities beyond their competition portfolio. Assume a competition agency that has significant regulatory power, such as the right to review certain mergers before they are consummated. Pursuant to this authority, the agency determines how quickly mergers are cleared, or whether they can proceed at all. This regulatory power is the functional equivalent of the market power that some private firms enjoy. Further assume that the agency has responsibilities beyond its competition portfolio — say, with regard to privacy and data security. A firm seeks the approval of the agency to merge with another company. What should we think if the agency uses its regulatory power in policy domain A (i.e., merger approval) to extract concessions with respect to policy domain B (i.e., privacy and data security)? Is that a good idea or a bad idea? Does your response differ if the agency is using its regulatory authority in policy domain A to obtain concessions that it could not obtain, or could realize only with great difficulty, if it focused solely on the behavior of the firm in policy domain B? What if the agency is using its regulatory authority in policy domain A to obtain concessions in policy domain B that would be unconstitutional if it sought to impose them directly? Does it make a difference if the agency has no regulatory authority over policy domain B? Stated bluntly, is regulatory leveraging a troublesome problem — or a useful solution? We describe leveraging in the private and public sectors; analyze four case studies of public sector leveraging; consider the costs and benefits of regulatory leveraging; and offer several suggestions for increasing the likelihood that leveraging is used for pro-social ends. We also briefly describe the leveraging of regulators.
{"title":"Regulatory Leveraging: Problem or Solution?","authors":"William E. Kovacic, D. Hyman","doi":"10.2139/SSRN.2817339","DOIUrl":"https://doi.org/10.2139/SSRN.2817339","url":null,"abstract":"Worldwide, there are approximately 130 jurisdictions with competition laws. The governmental entities charged with enforcing these laws are typically called “competition agencies,” but many of these entities do things other than competition law. Of the 36 agencies listed in the Global Competition Review’s 2015 annual review, half have responsibilities beyond their competition portfolio. Assume a competition agency that has significant regulatory power, such as the right to review certain mergers before they are consummated. Pursuant to this authority, the agency determines how quickly mergers are cleared, or whether they can proceed at all. This regulatory power is the functional equivalent of the market power that some private firms enjoy. Further assume that the agency has responsibilities beyond its competition portfolio — say, with regard to privacy and data security. A firm seeks the approval of the agency to merge with another company. What should we think if the agency uses its regulatory power in policy domain A (i.e., merger approval) to extract concessions with respect to policy domain B (i.e., privacy and data security)? Is that a good idea or a bad idea? Does your response differ if the agency is using its regulatory authority in policy domain A to obtain concessions that it could not obtain, or could realize only with great difficulty, if it focused solely on the behavior of the firm in policy domain B? What if the agency is using its regulatory authority in policy domain A to obtain concessions in policy domain B that would be unconstitutional if it sought to impose them directly? Does it make a difference if the agency has no regulatory authority over policy domain B? Stated bluntly, is regulatory leveraging a troublesome problem — or a useful solution? We describe leveraging in the private and public sectors; analyze four case studies of public sector leveraging; consider the costs and benefits of regulatory leveraging; and offer several suggestions for increasing the likelihood that leveraging is used for pro-social ends. We also briefly describe the leveraging of regulators.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114136753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay taxonomizes and examines eight possible accounts of the normative force of consent. Two of these construe consent as a source of liberty-limiting constraints upon the later actions of the person who gives consent. On these accounts, consent functions to foreclose the opportunity for later complaint about actions which may, nevertheless, remain serious wrongs. Six of the accounts I describe, however, characterize consent as a source of liberty-enhancing permissions that eliminate otherwise existing obligations on the part of those to whom consent is given. On these accounts, consent is a moral-game changer. While it may not do all the work that is required to make others’ actions moral, it eliminates any claim that such actions are wrongs to the person who gives consent. As such, these liberty-enhancing accounts are true to the notion that consent is morally magical — that it has the ability to create and destroy obligations in the blink of an eye, and thus constitutes a normative power that allows agents to change their moral landscape, to alter others’ moral legacies, and to author moral laws by will alone.
{"title":"The Normative Force of Consent","authors":"Heidi M. Hurd","doi":"10.4324/9781351028264-5","DOIUrl":"https://doi.org/10.4324/9781351028264-5","url":null,"abstract":"This essay taxonomizes and examines eight possible accounts of the normative force of consent. Two of these construe consent as a source of liberty-limiting constraints upon the later actions of the person who gives consent. On these accounts, consent functions to foreclose the opportunity for later complaint about actions which may, nevertheless, remain serious wrongs. Six of the accounts I describe, however, characterize consent as a source of liberty-enhancing permissions that eliminate otherwise existing obligations on the part of those to whom consent is given. On these accounts, consent is a moral-game changer. While it may not do all the work that is required to make others’ actions moral, it eliminates any claim that such actions are wrongs to the person who gives consent. As such, these liberty-enhancing accounts are true to the notion that consent is morally magical — that it has the ability to create and destroy obligations in the blink of an eye, and thus constitutes a normative power that allows agents to change their moral landscape, to alter others’ moral legacies, and to author moral laws by will alone.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125929899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this working paper is to investigate utility patent applications to the US Patent and Trademark Office (PTO) from inventors residing in China. It first focuses on the growth in the numbers of applications, putting this growth in context by comparing it to other important emerging economies. The paper considers how the technology mix of applications from China and the other comparison countries has evolved and how allowance rates have changed over the past decade. The paper also puts the recent growth of Chinese utility patent applications into historical perspective by comparing it to 1) the growth in South Korean applications for the 10-year period starting from the mid-1980s, and 2) the growth in Indian applications for the 10-year period starting in the late 1990s. We find that the growth in the number of applications from China has greatly outpaced the overall growth in applications from both domestic and foreign filers. It has also outpaced the growth in applications from other important emerging economies such as India and Brazil. At the same time, the technology mix of Chinese applications has become more heavily weighted toward communications and computing. We found a similar result for the applications which originated from the other major emerging economies. Finally, over the past 6 years, the allowance rate for Chinese applications has begun to converge with the allowance rate for Japanese and South Korean applications. The historical comparisons indicate that the growth in applications from China is not unique. Chinese growth has been very similar to the growth in applications to the PTO from South Korea starting in the mid-1980s. Overall, the results indicate that China is taking the next step in the development process from the production of standardized goods to the development of new products and processes.
{"title":"Perspectives on the Growth in Chinese Patent Applications to the USPTO","authors":"Alan C. Marco, Richard D. Miller, J. Kesan","doi":"10.2139/ssrn.2849622","DOIUrl":"https://doi.org/10.2139/ssrn.2849622","url":null,"abstract":"The purpose of this working paper is to investigate utility patent applications to the US Patent and Trademark Office (PTO) from inventors residing in China. It first focuses on the growth in the numbers of applications, putting this growth in context by comparing it to other important emerging economies. The paper considers how the technology mix of applications from China and the other comparison countries has evolved and how allowance rates have changed over the past decade. The paper also puts the recent growth of Chinese utility patent applications into historical perspective by comparing it to 1) the growth in South Korean applications for the 10-year period starting from the mid-1980s, and 2) the growth in Indian applications for the 10-year period starting in the late 1990s. We find that the growth in the number of applications from China has greatly outpaced the overall growth in applications from both domestic and foreign filers. It has also outpaced the growth in applications from other important emerging economies such as India and Brazil. At the same time, the technology mix of Chinese applications has become more heavily weighted toward communications and computing. We found a similar result for the applications which originated from the other major emerging economies. Finally, over the past 6 years, the allowance rate for Chinese applications has begun to converge with the allowance rate for Japanese and South Korean applications. The historical comparisons indicate that the growth in applications from China is not unique. Chinese growth has been very similar to the growth in applications to the PTO from South Korea starting in the mid-1980s. Overall, the results indicate that China is taking the next step in the development process from the production of standardized goods to the development of new products and processes.","PeriodicalId":286992,"journal":{"name":"University of Illinois College of Law Legal Studies Research Paper Series","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121373998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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