Pub Date : 2021-01-01DOI: 10.36646/mjlr.55.1.emergency
S. Morse
The Paycheck Protection Program, or PPP, was huge. Between April 2020 and May 2021, it provided almost $800 billion to more than 11 million businesses—about a third of all U.S. businesses with 500 employees or fewer. The PPP was also flawed. Treasury and the Small Business Administration faced incomplete statutory instructions and a challenging tradeoff between speed and accuracy in distributing PPP funds. These flaws make the PPP a realistic and valuable case study; the PPP reveals tools that can be applied to similar distributions of emergency funds. One tool is back-end adjustments, meaning that funds are first distributed and then later it is decided whether recipients may keep the money. Another tool is distribution in descending order of necessity, meaning that the first recipients to receive funds are applicants that most clearly meet the criteria of the program. A fund can follow distribution in descending order of necessity to disburse all of its funds. This approach is similar to a descending price auction for the sale of bonds or a stock of goods. Disbursing amounts in descending order of necessity also allows a fund to collect information needed to improve future distribution policy.
{"title":"Emergency Money: Lessons from the Paycheck Protection Program","authors":"S. Morse","doi":"10.36646/mjlr.55.1.emergency","DOIUrl":"https://doi.org/10.36646/mjlr.55.1.emergency","url":null,"abstract":"The Paycheck Protection Program, or PPP, was huge. Between April 2020 and May 2021, it provided almost $800 billion to more than 11 million businesses—about a third of all U.S. businesses with 500 employees or fewer. The PPP was also flawed. Treasury and the Small Business Administration faced incomplete statutory instructions and a challenging tradeoff between speed and accuracy in distributing PPP funds. These flaws make the PPP a realistic and valuable case study; the PPP reveals tools that can be applied to similar distributions of emergency funds. One tool is back-end adjustments, meaning that funds are first distributed and then later it is decided whether recipients may keep the money. Another tool is distribution in descending order of necessity, meaning that the first recipients to receive funds are applicants that most clearly meet the criteria of the program. A fund can follow distribution in descending order of necessity to disburse all of its funds. This approach is similar to a descending price auction for the sale of bonds or a stock of goods. Disbursing amounts in descending order of necessity also allows a fund to collect information needed to improve future distribution policy.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88184416","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 : 2021-01-01DOI: 10.36646/MJLR.54.3.WHITE
A. Crepelle
American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Presentday Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources. This Article asserts the federal regulatory “white tape” is unconstitutional. By focusing on restraints upon trust land and Indian trader laws, this Article demonstrates that contemporary federal regulations impeding tribal economic development are based upon flagrantly racist ideas. This Article explores the unique relationship between Indians and the Constitution and concludes that restrictions on tribal trust land and Indian trader laws should be subjected to strict scrutiny rather than the usual rational basis review applied to legislation relating to Indians. These regulations cannot survive strict scrutiny. Once tribes are liberated from these antiquated regulations, this Article proposes that tribes be able to craft their own land use and economic policies without federal approval.
{"title":"White Tape and Indian Wards: Removing the Federal Bureaucracy to Empower Tribal Economies and Self-Government","authors":"A. Crepelle","doi":"10.36646/MJLR.54.3.WHITE","DOIUrl":"https://doi.org/10.36646/MJLR.54.3.WHITE","url":null,"abstract":"American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Presentday Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources. This Article asserts the federal regulatory “white tape” is unconstitutional. By focusing on restraints upon trust land and Indian trader laws, this Article demonstrates that contemporary federal regulations impeding tribal economic development are based upon flagrantly racist ideas. This Article explores the unique relationship between Indians and the Constitution and concludes that restrictions on tribal trust land and Indian trader laws should be subjected to strict scrutiny rather than the usual rational basis review applied to legislation relating to Indians. These regulations cannot survive strict scrutiny. Once tribes are liberated from these antiquated regulations, this Article proposes that tribes be able to craft their own land use and economic policies without federal approval.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"145 1","pages":"563-610"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73145219","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 : 2021-01-01DOI: 10.36646/mjlr.55.1.black
Vitor M. Dias
Scholars and practitioners have extensively examined patterns of racial inequality in U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers, and family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict, also precipitate work transitions. Beyond corporate firms, however, an urgent question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession? In this Article, I address this question drawing upon data from the first nationally representative, longitudinal survey of U.S. lawyers. This study is one of few that uses event history analysis as a statistical technique to examine legal careers. It also draws on in-depth interviews to unravel how lawyers view their experiences at firms. These legal professionals detail how race influences assignment distribution and promotion within American law firms. Assessment of work histories of over 4,000 law school graduates, from the time they were admitted to practice in the year 2000, shows that, all else being equal, Black lawyers are pushed out of private law firms at much higher rates than white lawyers. As Black lawyers continue to strive for racial equality, these results indicate that race-conscious remedies remain critical not only for the future of law firms, but also for the broader legal profession.
{"title":"Black Lawyers Matter: Enduring Racism in American Law Firms","authors":"Vitor M. Dias","doi":"10.36646/mjlr.55.1.black","DOIUrl":"https://doi.org/10.36646/mjlr.55.1.black","url":null,"abstract":"Scholars and practitioners have extensively examined patterns of racial inequality in U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers, and family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict, also precipitate work transitions. Beyond corporate firms, however, an urgent question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession? In this Article, I address this question drawing upon data from the first nationally representative, longitudinal survey of U.S. lawyers. This study is one of few that uses event history analysis as a statistical technique to examine legal careers. It also draws on in-depth interviews to unravel how lawyers view their experiences at firms. These legal professionals detail how race influences assignment distribution and promotion within American law firms. Assessment of work histories of over 4,000 law school graduates, from the time they were admitted to practice in the year 2000, shows that, all else being equal, Black lawyers are pushed out of private law firms at much higher rates than white lawyers. As Black lawyers continue to strive for racial equality, these results indicate that race-conscious remedies remain critical not only for the future of law firms, but also for the broader legal profession.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73756555","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 : 2021-01-01DOI: 10.36646/mjlr.55.1.lessons
Shawn Grant
The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact a new title to the ADA which clearly mandates the removal of barriers to website accessibility, while taking into account the impact on businesses and other entities that may be subject to accessibility requirements.
{"title":"Lessons from the Pandemic: Congress Must Act to Mandate Digital Accessibility for the Disabled Community","authors":"Shawn Grant","doi":"10.36646/mjlr.55.1.lessons","DOIUrl":"https://doi.org/10.36646/mjlr.55.1.lessons","url":null,"abstract":"The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact a new title to the ADA which clearly mandates the removal of barriers to website accessibility, while taking into account the impact on businesses and other entities that may be subject to accessibility requirements.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"45 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72413351","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 : 2021-01-01DOI: 10.36646/mjlr.54.4.prohibiting
Amy Ciardiello
The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is needed to ensure that no individual is prevented from voting because of their poverty. This Note argues wealth-based criminal disenfranchisement should be completely abolished.
{"title":"Prohibiting the Punishment of Poverty: The Abolition of the Wealth-Based Criminal Disenfranchisement","authors":"Amy Ciardiello","doi":"10.36646/mjlr.54.4.prohibiting","DOIUrl":"https://doi.org/10.36646/mjlr.54.4.prohibiting","url":null,"abstract":"The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is needed to ensure that no individual is prevented from voting because of their poverty. This Note argues wealth-based criminal disenfranchisement should be completely abolished.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"53 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78746295","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 principle established in the UK House of Lords` case of Salomon v Salomon (1897) AC 22 is universally known as the concept of Corporate Legal Personality. The implications of the concept include that the liability of members of a company is limited to the amount of their unpaid shares. While the principle is placed on a broad foundation, useful and convenient, it ought to, like many other rules, be received with some qualifications, especially in view of the fact that it has sometimes been relied upon to defraud creditors, to evade existing obligations, to circumvent statutes, or to protect knavery or crime. Occasional piercing of the veil of incorporation is thus considered both desirable and necessary with a view to ensuring that the concept is not used successfully for such negative ends. This paper discusses the concept of Corporate Legal Personality, its implications and continued usefulness in the light of the negative ends to which it is sometimes deployed. The paper's suggestion that the concept remains indispensable for the overall preservation of the sanctity of the corporate world, is followed by a dispassionate discussion of current case law on Corporate Legal Personality and Lifting of Corporate Veil. Then follow a brief analysis of the circumstances that may justify lifting of the veil, conclusion and recommendations.
{"title":"Does Salomon v. Salomon Still Reign? A Disquisition on Recent Case Law on Corporate Legal Personality and Lifting the Veil","authors":"Sylvester Udemezue","doi":"10.2139/ssrn.3806398","DOIUrl":"https://doi.org/10.2139/ssrn.3806398","url":null,"abstract":"<br><br>The principle established in the UK House of Lords` case of Salomon v Salomon (1897) AC 22 is universally known as the concept of Corporate Legal Personality. The implications of the concept include that the liability of members of a company is limited to the amount of their unpaid shares. While the principle is placed on a broad foundation, useful and convenient, it ought to, like many other rules, be received with some qualifications, especially in view of the fact that it has sometimes been relied upon to defraud creditors, to evade existing obligations, to circumvent statutes, or to protect knavery or crime. Occasional piercing of the veil of incorporation is thus considered both desirable and necessary with a view to ensuring that the concept is not used successfully for such negative ends. This paper discusses the concept of Corporate Legal Personality, its implications and continued usefulness in the light of the negative ends to which it is sometimes deployed. The paper's suggestion that the concept remains indispensable for the overall preservation of the sanctity of the corporate world, is followed by a dispassionate discussion of current case law on Corporate Legal Personality and Lifting of Corporate Veil. Then follow a brief analysis of the circumstances that may justify lifting of the veil, conclusion and recommendations.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82401121","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 : 2020-05-18DOI: 10.36646/MJLR.53.3.CALCULATING
M. Pressman
The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first task. Next, the Article focuses on the imprecision that the law must grapple with whose implications are most salient: how to aggregate happiness across years of a life. This imprecision becomes significant in the context of torts that shorten a person’s life. The Article explores the appropriate measure of damages (under a corrective-justice theory) in cases in which a victim has her expected future shortened by a tort (e.g., medical malpractice or exposure to carcinogens), but in which she has not yet died. The fact that the victim is still alive makes it possible to compensate the victim herself directly for the value of life-years. Should she be compensated? The question, already critical in a number of cases, will substantially increase in prevalence with developments in science and technology in the coming years. This Article argues, contra current law in most states, that the law should take these types of cases seriously and that victims should be compensated if their loss of life-years constitutes a loss of happiness. The contrary position is in great tension with the commonsense intuition that losing life-years is one of the most (if not the most) serious harms that one can incur. But is our commonsense intuition correct? The Article proposes a three-step framework that can be used for addressing these questions of loss and getting to the appropriate measure of monetary compensation: (1) Determine which “happiness aggregation function” to espouse, (2) determine how much happiness (if any), according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determine how much monetary compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that she lost (according to one’s happiness aggregation function of choice).
{"title":"Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life","authors":"M. Pressman","doi":"10.36646/MJLR.53.3.CALCULATING","DOIUrl":"https://doi.org/10.36646/MJLR.53.3.CALCULATING","url":null,"abstract":"The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first task. \u0000 \u0000Next, the Article focuses on the imprecision that the law must grapple with whose implications are most salient: how to aggregate happiness across years of a life. This imprecision becomes significant in the context of torts that shorten a person’s life. The Article explores the appropriate measure of damages (under a corrective-justice theory) in cases in which a victim has her expected future shortened by a tort (e.g., medical malpractice or exposure to carcinogens), but in which she has not yet died. The fact that the victim is still alive makes it possible to compensate the victim herself directly for the value of life-years. Should she be compensated? The question, already critical in a number of cases, will substantially increase in prevalence with developments in science and technology in the coming years. This Article argues, contra current law in most states, that the law should take these types of cases seriously and that victims should be compensated if their loss of life-years constitutes a loss of happiness. The contrary position is in great tension with the commonsense intuition that losing life-years is one of the most (if not the most) serious harms that one can incur. But is our commonsense intuition correct? \u0000 \u0000The Article proposes a three-step framework that can be used for addressing these questions of loss and getting to the appropriate measure of monetary compensation: (1) Determine which “happiness aggregation function” to espouse, (2) determine how much happiness (if any), according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determine how much monetary compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that she lost (according to one’s happiness aggregation function of choice).","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"37 1","pages":"597-670"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87169293","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}
Jonathan M. Barnett, M. Baye, James C. Cooper, D. Crane, K. Elzinga, R. Epstein, Deborah A. Garza, T. Hazlett, J. Hurwitz, B. Klein, B. Klein, Jonathan Klick, T. Lambert, Tad Lipsky, Geoffrey A. Manne, S. Masten, M. Ohlhausen, James F. Rill, J. Rybnicek, V. Smith, D. Teece, R. Willig, Joshua D. Wright, John M. Yun
The modern antitrust debate has become characterized by sustained attacks on the integrity of antitrust institutions and by unsubstantiated dismissals of debate. This atmosphere has led to a variety of proposals for radical change to the antitrust laws and their enforcement that we believe are unsupported by the evidence, counterproductive to promoting competition and consumer welfare, and offered with an unwarranted degree of certainty. Many of these current proposals would (1) undermine the rule of law; (2) undo the healthy evolution of antitrust law in the courts over time; (3) require antitrust agencies to micromanage the economy by picking winners and losers; (4) abandon a focus on consumer welfare in favor of vague and politically-oriented goals; and (5) undermine successful American businesses and their competitiveness in the global economy at the worst-imaginable time. The assertions about the state of antitrust law and policy that purportedly justify these radical changes are not supported by the evidence. A more accurate reading of the evidence supports the following view of the American economy and the role of antitrust law: (1) the American economy—including the digital sector—is competitive, innovative, and serves consumers well; (2) structural changes in the economy have resulted from increased competition; (3) lax antitrust enforcement has not allowed systemic increases in market power; (4) existing antitrust law is adequate for protecting competition in the modern economy; (5) history teaches that discarding the modern approach to antitrust would harm consumers; and (6) common sense reforms should be pursued to improve antitrust enforcement. We believe open discussion of existing evidence is necessary to advance contemporary debates about the performance of antitrust institutions in the digital economy. We discuss in this letter various dimensions of antitrust law, economics, and institutions that have been the targets of radical reform proposals. The signatories to this letter hold a steadfast belief that antitrust institutions, including the courts, are up to the task of protecting competition, and that the federal antitrust laws as written are effective in accomplishing that goal. While many signatories have offered diverse proposals to improve the functioning of those institutions—a few of which we share in this letter—we hold the common view that the proposed radical reforms would make consumers worse off now and in the future by chilling efficient behavior and stymieing innovation.
{"title":"Joint Submission of Antitrust Economists, Legal Scholars, and Practitioners to the House Judiciary Committee on the State of Antitrust Law and Implications for Protecting Competition in Digital Markets","authors":"Jonathan M. Barnett, M. Baye, James C. Cooper, D. Crane, K. Elzinga, R. Epstein, Deborah A. Garza, T. Hazlett, J. Hurwitz, B. Klein, B. Klein, Jonathan Klick, T. Lambert, Tad Lipsky, Geoffrey A. Manne, S. Masten, M. Ohlhausen, James F. Rill, J. Rybnicek, V. Smith, D. Teece, R. Willig, Joshua D. Wright, John M. Yun","doi":"10.2139/ssrn.3604374","DOIUrl":"https://doi.org/10.2139/ssrn.3604374","url":null,"abstract":"The modern antitrust debate has become characterized by sustained attacks on the integrity of antitrust institutions and by unsubstantiated dismissals of debate. This atmosphere has led to a variety of proposals for radical change to the antitrust laws and their enforcement that we believe are unsupported by the evidence, counterproductive to promoting competition and consumer welfare, and offered with an unwarranted degree of certainty. Many of these current proposals would (1) undermine the rule of law; (2) undo the healthy evolution of antitrust law in the courts over time; (3) require antitrust agencies to micromanage the economy by picking winners and losers; (4) abandon a focus on consumer welfare in favor of vague and politically-oriented goals; and (5) undermine successful American businesses and their competitiveness in the global economy at the worst-imaginable time. The assertions about the state of antitrust law and policy that purportedly justify these radical changes are not supported by the evidence. A more accurate reading of the evidence supports the following view of the American economy and the role of antitrust law: (1) the American economy—including the digital sector—is competitive, innovative, and serves consumers well; (2) structural changes in the economy have resulted from increased competition; (3) lax antitrust enforcement has not allowed systemic increases in market power; (4) existing antitrust law is adequate for protecting competition in the modern economy; (5) history teaches that discarding the modern approach to antitrust would harm consumers; and (6) common sense reforms should be pursued to improve antitrust enforcement. We believe open discussion of existing evidence is necessary to advance contemporary debates about the performance of antitrust institutions in the digital economy. We discuss in this letter various dimensions of antitrust law, economics, and institutions that have been the targets of radical reform proposals. The signatories to this letter hold a steadfast belief that antitrust institutions, including the courts, are up to the task of protecting competition, and that the federal antitrust laws as written are effective in accomplishing that goal. While many signatories have offered diverse proposals to improve the functioning of those institutions—a few of which we share in this letter—we hold the common view that the proposed radical reforms would make consumers worse off now and in the future by chilling efficient behavior and stymieing innovation.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"13 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72390291","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 COVID-19 pandemic already feels like a historical turning point akin to Word Wars I and II and the Great Depression. It may signal the end of the second period of globalization (1980–2020) and a change in the relative positions of the US and China. It could also lead in the US to significant changes in tax policy designed to bolster its social safety net, which was revealed as very porous during the pandemic. This article will first discuss some short-term effects of the pandemic on US tax policy, and then some potential longer-term effects. In the short term, the article advocates an excess profits tax on companies that benefited from the pandemic. In the longer term the article calls for a progressive corporate tax and a VAT.
{"title":"COVID-19 and US Tax Policy: What Needs to Change?","authors":"R. Avi-Yonah","doi":"10.2139/ssrn.3584330","DOIUrl":"https://doi.org/10.2139/ssrn.3584330","url":null,"abstract":"The COVID-19 pandemic already feels like a historical turning point akin to Word Wars I and II and the Great Depression. It may signal the end of the second period of globalization (1980–2020) and a change in the relative positions of the US and China. It could also lead in the US to significant changes in tax policy designed to bolster its social safety net, which was revealed as very porous during the pandemic. \u0000This article will first discuss some short-term effects of the pandemic on US tax policy, and then some potential longer-term effects. In the short term, the article advocates an excess profits tax on companies that benefited from the pandemic. In the longer term the article calls for a progressive corporate tax and a VAT.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"223 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87558825","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}
Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does not fully answer, trustees, lawyers, and courts often look to trust law for help. In fact, they have been doing so for more than a century, including in the U.S. Supreme Court’s landmark 1892 public trust decision, Illinois Central Railroad Co. v Illinois. In this sense, trust law provides a set of background or underlying principles for interpreting and applying public trusts. Using cases from around the country, this Article sets out a four-step methodology for determining when and how to use trust law principles to help interpret public trusts. This methodology can be applied in any case involving the use of specific trust principles to help interpret any particular public trust. This Article also explains that the relevant trust law should not be limited to private trust law, but rather it should include general trust principles, charitable trust law principles, and private (or noncharitable) trust law principles. This Article uses a 2019 Commonwealth Court of Pennsylvania decision, Pennsylvania Environmental Defense Foundation v. Commonwealth, as a case study. The case applies article I, section 27 of the Pennsylvania Constitution, which requires that public natural resources be conserved and maintained for the benefit of present and future generations. In that case, the court used an interpretation of private trust law to decide that the state could spend some bonus and rental payment money from oil and gas leasing on state forest and park land, which is constitutional public trust property, for non-trust purposes. This Article applies the four-part methodology to the case, explains general trust law and charitable trust law principles that the Commonwealth Court of Pennsylvania did not address, and argues that the use of these principles better fits the constitutional public trust. It concludes that the money from bonus and rental payments should be spent entirely for the purposes of the trust. This Article draws attention to both the potential value of trust law principles and also to their potential danger in the interpretation and application of public trust laws for natural resources. Trust law has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring or encoura
{"title":"The Role of Trust Law Principles in Defining Public Trust Duties for Natural Resources","authors":"J. Dernbach","doi":"10.36646/MJLR.54.1.ROLE","DOIUrl":"https://doi.org/10.36646/MJLR.54.1.ROLE","url":null,"abstract":"Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does not fully answer, trustees, lawyers, and courts often look to trust law for help. In fact, they have been doing so for more than a century, including in the U.S. Supreme Court’s landmark 1892 public trust decision, Illinois Central Railroad Co. v Illinois. In this sense, trust law provides a set of background or underlying principles for interpreting and applying public trusts.\u0000\u0000Using cases from around the country, this Article sets out a four-step methodology for determining when and how to use trust law principles to help interpret public trusts. This methodology can be applied in any case involving the use of specific trust principles to help interpret any particular public trust. This Article also explains that the relevant trust law should not be limited to private trust law, but rather it should include general trust principles, charitable trust law principles, and private (or noncharitable) trust law principles.\u0000\u0000This Article uses a 2019 Commonwealth Court of Pennsylvania decision, Pennsylvania Environmental Defense Foundation v. Commonwealth, as a case study. The case applies article I, section 27 of the Pennsylvania Constitution, which requires that public natural resources be conserved and maintained for the benefit of present and future generations. In that case, the court used an interpretation of private trust law to decide that the state could spend some bonus and rental payment money from oil and gas leasing on state forest and park land, which is constitutional public trust property, for non-trust purposes. This Article applies the four-part methodology to the case, explains general trust law and charitable trust law principles that the Commonwealth Court of Pennsylvania did not address, and argues that the use of these principles better fits the constitutional public trust. It concludes that the money from bonus and rental payments should be spent entirely for the purposes of the trust.\u0000\u0000This Article draws attention to both the potential value of trust law principles and also to their potential danger in the interpretation and application of public trust laws for natural resources. Trust law has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring or encoura","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78934621","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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