Wake Forest University School of Law Legal Studies Research Paper Series最新文献

{"title":"Wells Fargo & the Bank Holding Company Act's Section 106: Exhuming § 1972 as the Antitrust Remedy to Impermissible Bundling and Tying","authors":"Marc Wiersum","doi":"10.2139/ssrn.2913939","DOIUrl":"https://doi.org/10.2139/ssrn.2913939","url":null,"abstract":"In light of The People of California. v. Wells Fargo Bank, N.A., this analysis suggests that banking sales practices that incorporate impermissible forms of \"bundling\" are susceptible to tying claims under 12 U.S.C. § 1972, which does not require the Sherman/Clayton antitrust proofs of market power, coercion, foreclosure, anti-competitive effects, or substantial amounts of commerce. \u0000 \u0000This article provides an analysis of both \"impermissible tying\" as well as \"permissible tying\" as a legitimate form of \"bundling,\" based on this banker's experiences at major commercial and investment banks from 1990 to 2014, as well as recent litigation in Wiersum v. U.S. Bank, N.A., 785 F.3d, (11th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016). \u0000 \u0000This analysis argues that, should regulators more aggressively enforce, and the judiciary more broadly construe, the Congressional intent supporting § 1972, not only would retail and wholesale bank customers receive proper protection from the type of abusive sales practices alleged in Wells Fargo, but that various operational risks addressed by Dodd-Frank would also be mitigated. \u0000 \u0000Additionally, classic leverage theory, as more recently discussed by Einer Elhauge in \"Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory,\" provides a more robust account of \"credit as leverage\" than the single monopoly profit theory, supporting the sound theoretical basis for § 1972, its per se rule of illegality, and the consumer welfare standard in lieu of the total welfare standard.","PeriodicalId":121108,"journal":{"name":"Wake Forest University School of Law Legal Studies Research Paper Series","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134081010","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}

{"title":"Further Reflections on Extinguishing the Fountainhead of Knowledge: A Call to Transition to the 'Innovation Policy' Narrative in Patent Law","authors":"Simone A. Rose","doi":"10.2139/ssrn.2284237","DOIUrl":"https://doi.org/10.2139/ssrn.2284237","url":null,"abstract":"Economists are unable to provide a clear answer as to the effectiveness of the patent system in encouraging innovation. At best, they point to certain sectors, such as pharmaceutical and biotechnology, which benefit from a robust patent scheme. Conversely, sectors such as software and ironically at the same time, biotechnology, may be harmed by an overly broad patent scheme. The question that emerges is: why do the various stakeholder in all industrial sectors, Congress, the Patent and Trademark Office (“PTO”) and the courts (in particular, the Federal Circuit), continue to center the development of patent law around the “innovation presumption” despite the lack of theoretical and empirical evidence to answer the fundamental question: Do patents actually create more incentive to innovate, more actual innovation and hence more economic growth? Preparing for this Symposium on the Federal Circuit, innovation and disruptive technologies has allowed me to further reflect on why it is necessary to challenge the innovation presumption and explore alternative paradigms, such as the use of innovation “policy levers” for this problematic narrative.","PeriodicalId":121108,"journal":{"name":"Wake Forest University School of Law Legal Studies Research Paper Series","volume":"13 14","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113984433","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}

{"title":"Portable Minimalism in Sentencing Politics","authors":"R. Wright","doi":"10.2139/SSRN.1853322","DOIUrl":"https://doi.org/10.2139/SSRN.1853322","url":null,"abstract":"In this response to Erik Luna and Paul Cassell’s article, Mandatory Minimalism, 32 Cardozo L. Rev. 1 (2010), I argue that the authors’ theory of federal crime legislation is misplaced – in the literal sense that it is directed to the wrong place. A minimalist strategy of finding the available legislative consensus for small reforms will usually not work in the federal legislative process. Any change to federal crime legislation faces many procedural barriers, most prominent among them the use of the filibuster in the Senate. Given this institutional landscape, it is not surprising that Congress hardly ever repeals mandatory minimum statutes. Institutional rules, rather than individual views of legislators, produced this result in the past and will dominate efforts to repeal these laws in the future. The legislative process in many states, however, is not so oriented towards inaction. One can point to a larger stockpile of repealed mandatory minimums at the state level. The core issue, then, is the portability of minimalism. The social science foundations of the theory posit behavioral rules for individuals, but individuals work within particular institutions, with their particular decision rules and traditions. A theory about individual action, such as minimalism, does offer insights, but it must be filtered through the institutional lenses of the relevant jurisdiction.","PeriodicalId":121108,"journal":{"name":"Wake Forest University School of Law Legal Studies Research Paper Series","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116569151","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}

{"title":"The Bill of Rights and the States: An Overview from One Perspective","authors":"M. Curtis","doi":"10.2139/SSRN.1334687","DOIUrl":"https://doi.org/10.2139/SSRN.1334687","url":null,"abstract":"\"The Bill of Rights and the States: An Overview From One Perspective,\" discusses historical evidence for application of the Bill of Rights to the states, primarily under the privileges or immunities clause of the Fourteenth Amendment. It also briefly discusses application under due process. The article tells about my interest in application of the Bill of Rights to the States (starting with college in the 1960s) and about the wide spread agreement among legal academics in the 1970s and 1980s that history did not support applying the liberties to the states. Many of these relied on the work of Professor Charles Fairman, which rejected, at least, total application, and these scholars assumed Fairman's work was \"conclusive.\" Indeed, some thought it disproved application generally. Later many relied on Raoul Berger. Critics at the time typically dismissed Justice Black's analysis. Curiously, they often totally ignored Professor Crosskey's long law review article responding to Professor Fairman's article on the same subject. As a law student and practicing lawyer, I made a few ineffective attempts to get scholars to at least read and discuss the Crosskey rebuttal. Finally, thanks to a law partner who loaned me Raoul Berger's Government by Judiciary, I began to write about the subject myself. In this article, I discuss the substantial historical case for applying the liberties to the states under the privileges or immunities clause of the Fourteenth Amendment. I do so using multiple modes of analysis. The best way to understand historic meaning is multi-factorial, as opposed to the \"one true method\" of understanding. The methods I suggest (thanks to the contributions of others ) are historical context, the text of the amendment viewed in light of how the words \"privileges\" and \"immunities' were used historically to describe Bill of Rights liberties, context (or inter-textual analysis), precedent, the views of leading framers, discussion in the campaign of 1866 which was largely a referendum on the Fourteenth Amendment, limited light from ratification, and constitutional structure. I summarize a few of these in this abstract. Historical context: Since meaning is contextual, a good place to start is with the historical context. That context includes the suppression of speech, press, assembly, association, free exercise of religion, and other basic Bill of Rights liberties in the South (and sometimes in the North) in the interest of slavery. The suppression had taken place in the South for more than thirty years before the Civil War, and as the war approached Republicans had their speech, press, and assembly suppressed. The historical context also includes, of course, the racial discrimination of the Black Codes immediately after the war. A number of those codes not only discriminated, but also struck at basic constitutional liberties-if one assumes, as leading Republicans did, that the states were obliged to obey them. The codes abridged the right of bla","PeriodicalId":121108,"journal":{"name":"Wake Forest University School of Law Legal Studies Research Paper Series","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132043146","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}