University of San Francisco School of Law Legal Studies Research Paper Series最新文献

{"title":"Antitrust As Antiracism: Antitrust as a Partial Cure for Systemic Racism (and Other Systemic 'ISMS')","authors":"Joshua P. Davis, Eric L. Cramer, Reginald L. Streater, M. Suter","doi":"10.2139/ssrn.3816202","DOIUrl":"https://doi.org/10.2139/ssrn.3816202","url":null,"abstract":"We usually think of antitrust law as addressing violations of free market norms, not equality norms. The two, however, may be related. Systemic racism (and other systemic “isms”) are about power and its abuse. So is antitrust law. Moreover, antitrust may be able to fill gaps left by antidiscrimination law. In particular, antitrust law can address: (1) entire markets, not just individual firms or discrete actions; (2) power imbalances from differences in capital, not just disparities in compensation; (3) financial allocations between owners and workers, not just between workers; (4) legal violations that shrink total worker pay, and do not just distort its allocation. Antitrust law also relies on centrist free market principles. Those may be less controversial than tackling issues of race directly. To be sure, in part for that reason, antitrust laws are limited. They can at best remedy a small portion of the potential wrongs caused by systemic racism. But antitrust may nevertheless contribute valuably to systemic racial equality. It also may provide a model for how antidiscrimination law might be reframed to make it more effective in that regard.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123853619","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":"Attacking Democracy Through Immigration Workplace Raids","authors":"B. Hing","doi":"10.1017/9781108885362.016","DOIUrl":"https://doi.org/10.1017/9781108885362.016","url":null,"abstract":"Democracy is under attack through immigration workplace raids. Labor unions have finally come to realize that noncitizen workers—documented and undocumented—are their future. ICE raids have been timed—particularly by the Bush and Trump administrations to thwart organizing efforts. Through a process of demonizing and commodification of immigrant workers, the public has been conditioned to ignore the racial implications of ICE raids. But even a cursory examination reveals the racist effects of these enforcement efforts. However, on closer analysis reveals how these attacks are an attack on democracy as well. ICE raids are an attack on labor organizing, which in turn represents an assault on the freedom of association, freedom from discrimination, a strong middle class, and democratic acculturation.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114894021","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":"Law Without Mind: AI, Ethics, and Jurisprudence","authors":"Joshua P. Davis","doi":"10.2139/ssrn.3187513","DOIUrl":"https://doi.org/10.2139/ssrn.3187513","url":null,"abstract":"Anything we can conceive that computers may do, it seems that they end up doing and that they end up doing it better than us and much sooner than we expected. They have gone from calculating mathematics for us to creating and maintaining our social networks to serving as our personal assistants. We are told they may soon become our friends and make life and death decisions driving our cars. Perhaps they will also take over interpreting our laws. It is not that hard to conceive of computers doing so to the extent legal interpretation involves mere description or prediction. It is much harder to conceive of computers making substantive moral judgments. So the ultimate bulwark against ceding legal interpretation to computers—from having computers usurp the responsibility and authority of attorneys, citizens, and even judges—may be to recognize the role of moral judgment in saying what the law is. That possibility connects the cutting edge with the traditional. The central dispute in jurisprudence for the past half century or more has been about the role of morality in legal interpretation. Suddenly, that dispute has great currency and urgency. Jurisprudence may help us to clarify and circumscribe the role of computers in our legal system. And contemplating AI may help us to resolve jurisprudential debates that have vexed us for decades.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125491012","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":"Romancing the Law: Ally McBeal and the Art of Subversive Comedy","authors":"John Denvir","doi":"10.2139/SSRN.2334440","DOIUrl":"https://doi.org/10.2139/SSRN.2334440","url":null,"abstract":"The television sitcom Ally McBeal drew large audiences and won many awards, but the series also had detractors who felt that it demeaned both women lawyers and the legal profession. People loved and hated the show, but no one has thought it a serious commentary on the American legal system. I think it is time to take Ally McBeal seriously. I believe that its creator David E. Kelley has used the narrative devices of romantic comedy to make a subtle but powerful critique of the American legal system and to suggest a new future for law. It is an excellent example of what I call subversive comedy.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122213328","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":"Summaries of Twenty Cases of Successful Private Antitrust Enforcement","authors":"Joshua P. Davis, R. Lande","doi":"10.2139/SSRN.1961669","DOIUrl":"https://doi.org/10.2139/SSRN.1961669","url":null,"abstract":"This document summarizes twenty cases of successful private antitrust enforcement. These twenty summaries build on earlier summaries of forty additional cases of successful private enforcement available at http://ssrn.com/abstract=1105523. An analysis of the data from the original forty cases is available at http://ssrn.com/abstract=1090661 (published as Robert L. Lande and Joshua P. Davis, Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases, 42 U.S.F. L. REV. 879 (2008)) and an argument based on the forty cases that private antitrust enforcement has greater deterrence effects than criminal enforcement by the Department of Justice is available at http://ssrn.com/abstract=1565693 (published as Robert L. Lande and Joshua P. Davis, Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws, Brigham Young University Law Review, 315, 2011).","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133217630","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":"Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws","authors":"R. Lande, Joshua P. Davis","doi":"10.2139/SSRN.1565693","DOIUrl":"https://doi.org/10.2139/SSRN.1565693","url":null,"abstract":"This article shows that private enforcement of the U. S. antitrust laws-which usually is derided as essentially worthless-serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division of the U.S. Department of Justice. The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of a startling finding. Even those who do not deride private enforcement usually believe its only function is to compensate victims of antitrust violations by modest amounts. Significant deterrence is commonly thought to be the effect only of government enforcement, especially criminal enforcement. Our article's conclusion that the amounts of payouts in private cases are actually staggeringly high-so high that they deter anticompetitive conduct more effectively than the criminal fines and prison sentences resulting from Department of Justice cases-is thus the opposite of the consensus within the antitrust community. Indeed, we hope this article causes many in both the United Sates and in Europe to reevaluate their views as to the overall efficacy of private antitrust enforcement.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129974424","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":"Benefits from Private Antitrust Enforcement: Forty Individual Case Studies","authors":"R. Lande, Joshua P. Davis","doi":"10.2139/SSRN.1105523","DOIUrl":"https://doi.org/10.2139/SSRN.1105523","url":null,"abstract":"This Paper presents information about forty of the largest recent successful private antitrust cases. To do this, the paper gathers information about each case, including, inter alia, (1) the amount of money each action recovered for the victims of each alleged antitrust violation, (2) what proportion of the money was recovered from foreign entities, (3) whether government action preceded the private litigation, (4) the attorney's fees awarded to plaintiffs' counsel, (5) on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and (6) the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two). A separate Study, forthcoming in the University of San Francisco Law Review (available at: http://ssrn.com/abstract=1090661), aggregates and analyzes this information. That Study also compares the total monetary amounts paid in all forty cases, as well as from the subset of the forty cases that also resulted in criminal penalties, to the total criminal antitrust fines imposed during the same period by the United States Department of Justice (\"DOJ\"), and also to the deterrence effects of the prison sentences that resulted from DOJ prosecutions during this period. The overall goal of the project is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws serves its intended purposes and is in the public interest. The results of the Study show that private antitrust enforcement helps the economy in many ways. It very significantly compensates victims of illegal corporate behavior, and is almost always the only way they can receive redress. Private enforcement often prevents foreign corporations from keeping the many billions of dollars they illegally obtain from individual and corporate purchasers in the United States. The Study also shows that almost half of the underlying violations were first uncovered by private attorneys, not government enforcers, and that litigation in many other cases had a mixed public/private origin. The evidence also shows that private litigation probably does more to deter antitrust violations than all the fines and incarceration imposed as a result of criminal enforcement by the U.S. Department of Justice. This is one of the most surprising results from our Study. We do not know of any past study that has documented that private enforcement has such a significant deterrence effect as compared to DOJ criminal enforcement.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122680938","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":"Classwide Recoveries","authors":"Joshua P. Davis","doi":"10.2139/ssrn.1768148","DOIUrl":"https://doi.org/10.2139/ssrn.1768148","url":null,"abstract":"Classwide recoveries can have various advantages over individual recoveries. They can, for example, allow plaintiffs to pursue litigation when individual actions would be uneconomical and they can make possible a statistical approach that is often not feasible in ordinary litigation. After noting these points, this Article explores subtler issues. In doing so, it focuses on situations in which classwide recoveries can do better than cumulative individual recoveries at imposing just the right amount of liability on defendants. The circumstances in which this benefit accrues are important: when some but not all members of a group suffered injury and identifying which members of the group were harmed is impossible or impractical. This issue has great significance. A recent controversy in class certification jurisprudence is whether plaintiffs must show harm to all or virtually all members of a proposed class to satisfy Feral Rule of Civil Procedure 23. This Article suggests a novel and counterintuitive thesis: class treatment and awarding classwide recoveries can be particularly valuable precisely when some courts have questioned the propriety of class certification.","PeriodicalId":151941,"journal":{"name":"University of San Francisco School of Law Legal Studies Research Paper Series","volume":"233 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133390523","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}