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The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez del Prado Ch. 2019 Yale Law School

The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez Del Prado Ch.

Pace International Law Review

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.



Lawmakers As Job Buyers, Edward W. De Barbieri 2019 Albany Law School

Lawmakers As Job Buyers, Edward W. De Barbieri

Fordham Law Review

In 2013, Washington State authorized the largest state tax incentive for private industry in U.S. history. It is not remarkable for a state legislature to use tax benefits to retain a major employer—in this case, the global aerospace manufacturer Boeing. Laws across all states and thousands of cities routinely incentivize companies such as Amazon to relocate or remain in particular areas. Notably, however, Washington did not recover any of the subsidies it authorized despite Boeing’s significant post-incentive workforce reductions. This story leads to several important questions: (1) How effective are state and local legislatures at influencing business-location ...


Regulating Habit-Forming Technology, Kyle Langvardt 2019 University of Detroit Mercy School of Law

Regulating Habit-Forming Technology, Kyle Langvardt

Fordham Law Review

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes ...


Commercial Law: Secured Transactions Statutory And Supplementary Materials: 2019-20, Benjamin Geva 2019 Osgoode Hall Law School of York University

Commercial Law: Secured Transactions Statutory And Supplementary Materials: 2019-20, Benjamin Geva

Osgoode Course Casebooks

Course code: 2030.4


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Non-Compete Legislation Is Getting Worse With Latest Revisions, Nathan B. Oman 2019 William & Mary Law School

Non-Compete Legislation Is Getting Worse With Latest Revisions, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese 2019 William & Mary Law School

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese

Alan J. Meese

Most scholars would agree that a merger between General Motors and Ford should not be judged solely by Delaware corporate law, even if both firms are incorporated in Delaware. Leaving the standards governing such mergers to state law would assuredly produce a race to the bottom that would result in unduly permissive treatment of such transactions. Similarly, if the two firms agreed to divide markets, most would agree that some regulatory authority other than Michigan or Delaware should have the final word on the agreement. Thus, in order to forestall monopoly or its equivalent, the national government must itself exercise ...


Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese 2019 William & Mary Law School

Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese

Alan J. Meese

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Supreme Court reversed Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), which had banned minimum resale price maintenance (“minimum RPM”) as unlawful per se. For many, Leegin was a straightforward exercise of the Court’s long-recognized authority, implied by the Sherman Act’s rule of reason, to adjust antitrust doctrine in light of new economic learning. In particular, Leegin invoked the teachings of transaction cost economics (“TCE”), which holds that many non-standard agreements, including minimum RPM, are voluntary mechanisms that reduce the transaction costs that manufacturers incur when they rely upon independent dealers to distribute their goods. For instance, proponents of TCE, including Nobel Laureate Oliver Williamson, have asserted that minimum RPM can prevent free riding and ensure that dealers engage in an optimal amount and type of promotion. Invoking these and other possible benefits, the Leegin Court ruled that minimum RPM could produce “redeeming virtues” and thus did not satisfy the normal test for per se condemnation. In so doing, the Court adhered to the rule of reason’s requirement, articulated in Standard Oil Co. v. United States, 221 U.S. 1 (1911), that courts adjust antitrust doctrine when “more accurate economic conceptions” undermine previous decisions.

However, some have chosen to resist Leegin to the utmost. In particular, scholars, enforcement officials, and forty-one state attorneys general have sought to convince Congress and/or state legislatures to reinstate the per se rule by statute, for instance, and have contended that minimum RPM is unlawful per se under existing state antitrust laws. Many have also argued that, pending Leegin’s reversal, courts should subject minimum RPM to a “quick look” rule of reason, whereby the practice is presumed unlawful, immediately casting upon the defendant a burden of justification. Perhaps because of these efforts, legislation that would have reversed Leegin and codified Dr. Miles was proposed by Congress in 2011.

There is, of course, a long history of Congress overriding straightforward applications of the Sherman Act, sometimes at the behest of special interest groups that benefit from such exemptions. However, those who resist Leegin and seek to reinstate the per se rule against minimum RPM do not rely upon the power of legislatures to pass wealth-reducing legislation. Instead they argue that Leegin “got it wrong” when applying basic antitrust principles animating the rule of reason. For these advocates, then, a new per se ban on minimum RPM would merely undo Leegin’s mistake.

This article refutes the various arguments that Leegin’s detractors have made for reinstating Dr. Miles and/or “quick look” treatment. TCE, it is shown, undermined the central premise of the per se rule, namely, that minimum RPM is economically indistinguishable from a naked horizontal cartel between dealers. This realization casts upon those who resist Leegin a burden of articulating and supporting an alternative rationale for per se condemnation. As the Article shows, Leegin’s detractors have not met this burden. Instead, their various arguments contradict TCE, basic antitrust principles, or both. Taken to their logical conclusion, these arguments would require the Court to abandon decades of jurisprudence based upon TCE and/or the long-standing test for per se illegality. However, Leegin’s detractors have offered no argument in favor of such radical changes.

Thus, far from correcting Leegin’s purported antitrust error, reimposition of the ban on minimum RPM would constitute a rejection of the “more accurate economic conceptions” that should drive antitrust doctrine and thus be akin to a welfare-reducing special interest exemption from the Sherman Act. Such exemptions are read narrowly, to minimize the impact of special interest influence in the legislative process. Indeed, even if Congress or the states do codify a per se ban on minimum RPM, state and federal courts will have various doctrinal strategies at their disposal to minimize the wealth-reducing impact of such legislation by, for instance, reading any amendment narrowly and restricting the class of plaintiffs who can challenge such agreements. As a result, resistance to Leegin may be more than merely misguided; it may also be futile


White Collar Crime: A Legal Overview, Paul Marcus 2019 William & Mary Law School

White Collar Crime: A Legal Overview, Paul Marcus

Paul Marcus

No abstract provided.


Crowdfunding Without The Crowd, Darian M. Ibrahim 2019 William & Mary Law School

Crowdfunding Without The Crowd, Darian M. Ibrahim

Darian M. Ibrahim

The final crowdfunding rules took three years for the Securites and Exchange Commission to pass, but crowdfunding—the offering of securities over the Internet—is now a reality. But now that crowdfunding is legal, will it be successful? Will crowdfunding be a regular means by which new companies raise money, or will it be relegated to a wasteland of the worst startups and foolish investors? This Article argues that crowdfunding has a greater chance of success if regulators abandon the idea that the practice does (and should) employ “crowd-based wisdom.” Instead, I argue that crowdfunding needs intermediation by experts that ...


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne 2019 William & Mary Law School

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Christopher Byrne

No abstract provided.


They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield 2019 William & Mary Law School

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.


The Confluence Of Bulk Transfer And Fraudulent Disposition Law, Peter A. Alces 2019 William & Mary Law School

The Confluence Of Bulk Transfer And Fraudulent Disposition Law, Peter A. Alces

Peter A. Alces

No abstract provided.


Roll Over, Llewellyn?, Peter A. Alces 2019 William & Mary Law School

Roll Over, Llewellyn?, Peter A. Alces

Peter A. Alces

No abstract provided.


Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces 2019 William & Mary Law School

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.


Surreptitious And Not-So-Surreptitious Adjustment Of The U.C.C.: An Introductory Essay, Peter A. Alces 2019 William & Mary Law School

Surreptitious And Not-So-Surreptitious Adjustment Of The U.C.C.: An Introductory Essay, Peter A. Alces

Peter A. Alces

No abstract provided.


Reconsidering Consideration In The Restatement (Third) Of Suretyship, Peter A. Alces 2019 William & Mary Law School

Reconsidering Consideration In The Restatement (Third) Of Suretyship, Peter A. Alces

Peter A. Alces

No abstract provided.


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne 2019 William & Mary Law School

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Peter A. Alces

No abstract provided.


On The Ucc Revision Process: A Reply To Dean Scott, Peter A. Alces, David Frisch 2019 William & Mary Law School

On The Ucc Revision Process: A Reply To Dean Scott, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


Generic Fraud And The Uniform Fraudulent Transfer Act, Peter A. Alces 2019 William & Mary Law School

Generic Fraud And The Uniform Fraudulent Transfer Act, Peter A. Alces

Peter A. Alces

No abstract provided.


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