Legislation & Statutory Interpretation eJournal最新文献

Legislation & Statutory Interpretation eJournal Pub Date : 2021-06-16 DOI: 10.2139/ssrn.3853282

Herbert Hovenkamp

{"title":"Antitrust Error Costs","authors":"Herbert Hovenkamp","doi":"10.2139/ssrn.3853282","DOIUrl":"https://doi.org/10.2139/ssrn.3853282","url":null,"abstract":"The idea that consideration of error costs should inform judgments about actions with uncertain consequences is well established. When we act on imperfect information, we consider not only the probability of an event, but also the expected costs of making an error. In 1984 Frank Easterbrook used this idea to rationalize an anti-enforcement bias in antitrust, reasoning that markets are likely to correct monopoly in a relatively short time while judicial errors are likely to persist. As a result, false positives (recognizing a problem when there is none) are more costly than false negatives. While the problem of error cost bias is not explicitly mentioned all that frequently in antitrust cases, its influence is broad and deep, guiding the formation of presumptions and burdens of proof. The anti-enforcement bias in antitrust originated long before Easterbrook wrote, and was reflected in the work of George J. Stigler and Milton Friedman, mainly in the 1940s and 1950s. They had attempted to dismantle theories of imperfect competition in favor of models in which competition nearly always prevailed unless restrained by government action. While the ideas underlying the error cost framework were relatively new ones in law schools, by the 1980s they were already in decline in industrial organization economics. Easterbrook was writing defensively. An empirical revolution in economics was already well engaged in a process that found imperfect competition models to be more testable, more dominant, and more useful for policy judgments. In the process, classical Marshall/Stigler models of perfect competition were all but abandoned as irrelevant. This empirical work provides increasing evidence that United States antitrust policy, but particularly merger policy, took a significant wrong turn in the mid-eighties. Today the error cost framework exists mainly as a result of rent seeking by firms who stand to profit from the low output and high margin consequences of this antitrust anti-enforcement bias.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132974821","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}

引用次数: 4

Bostock was Bogus: Textualism, Pluralism, and Title VII 博斯托克是假的:文本主义、多元主义和第七章

Legislation & Statutory Interpretation eJournal Pub Date : 2021-02-01 DOI: 10.2139/ssrn.3777519

Mitchell N. Berman, G. Krishnamurthi

{"title":"Bostock was Bogus: Textualism, Pluralism, and Title VII","authors":"Mitchell N. Berman, G. Krishnamurthi","doi":"10.2139/ssrn.3777519","DOIUrl":"https://doi.org/10.2139/ssrn.3777519","url":null,"abstract":"In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. \u0000 \u0000This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132160677","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}

引用次数: 1

5G Deployment: The Role and Challenges of Regulatory Bodies in Ensuring Convergence Within the EU 5G部署:监管机构在确保欧盟内部融合方面的作用和挑战

Legislation & Statutory Interpretation eJournal Pub Date : 2020-07-03 DOI: 10.2139/ssrn.3642489

A. Bruni

{"title":"5G Deployment: The Role and Challenges of Regulatory Bodies in Ensuring Convergence Within the EU","authors":"A. Bruni","doi":"10.2139/ssrn.3642489","DOIUrl":"https://doi.org/10.2139/ssrn.3642489","url":null,"abstract":"The 5G network enables a set of new technical features and services that will contribute to a substantial transformation of the digital market. The novelties 5G networks introduce will also determine, more than ever before, a convergence of multiple sectors that will use the 5G network functionalities to deliver new applications and services. Due to its cross-border nature, and as a result of the areas involved, the 5G network touches upon different laws and, thus, multiple regulatory regimes, requiring the enhancement of cooperation among many regulatory bodies. \u0000 \u0000The roll-out of the new generation of network, due to its cross-border nature will have an impact on existing regulatory frameworks, enhancing convergence and requiring cross-sectoral rules and Regulation. Notwithstanding the actions undertaken by the EU legislator for the development of a cross-sector strategy for the 5G network, none of the existing European legislative initiatives foresees procedures do not ensure coordination among the EU regulatory bodies. \u0000 \u0000Providing a secure roll-out of 5G networks is a necessary precondition for all sectors delivering their services thanks to the new network connectivity. Therefore, lack of a harmonised security approach at national level affecting coordination of national regulatory authorities in developing standard procedures risks to undermine, among others, the efforts to achieve the digital transformation of the EU’s economy and society. \u0000 \u0000Mainly focusing on the role of BEREC and other relevant EU agencies and bodies, the paper intends to demonstrate how current legislative initiatives do not have developed concrete procedures to streamline collaboration between different national and EU agencies, active in different domains. To demonstrate the procedural lack of harmonised procedures the paper focus on those legislations dealing with crucial aspects of the next generation of network connectivity, namely, the European Electronic Communication Code, the BEREC Regulation and the Network and Information Systems Directive.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130312441","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}

引用次数: 0

Data Point: 2019 Mortgage Market Activity and Trends 数据点:2019年抵押贷款市场活动和趋势

Legislation & Statutory Interpretation eJournal Pub Date : 2020-06-24 DOI: 10.2139/ssrn.3786973

Cfpb Office of Research

引用次数: 7

The CIA's Democratic Integrity: Information Sharing and Electoral Accountability 中央情报局的民主诚信:信息共享和选举责任

Legislation & Statutory Interpretation eJournal Pub Date : 2019-05-20 DOI: 10.2139/ssrn.3442338

Graham Streich

引用次数: 0

Virtual Currencies and Anti-Money Laundering – The Shortcomings of the 5th AML Directive (EU) and How to Address Them 虚拟货币与反洗钱-第五反洗钱指令(欧盟)的缺点以及如何解决它们

Legislation & Statutory Interpretation eJournal Pub Date : 2019-02-03 DOI: 10.2139/SSRN.3328064

Lars Haffke, Mathias Fromberger, Patrick Zimmermann

引用次数: 8

Not Slavishly Nor Always - Equity and Limitation Statutes 不亦步亦趋，也不总是亦步亦趋——衡平法和时效法

Legislation & Statutory Interpretation eJournal Pub Date : 2018-05-09 DOI: 10.5040/9781509995110.ch-014

M. Leeming

引用次数: 0

Beat It: Tax Reform and Tax Treaties 打败它:税收改革和税收协定

Legislation & Statutory Interpretation eJournal Pub Date : 2018-01-04 DOI: 10.2139/SSRN.3096879

R. Avi-Yonah

引用次数: 1

Lasers, Jammers, Nets, and Eagles: Drone Defense Is Still Illegal 激光，干扰机，网和鹰:无人机防御仍然是非法的

Legislation & Statutory Interpretation eJournal Pub Date : 2017-12-12 DOI: 10.2139/ssrn.3304914

Jacob Tewes

{"title":"Lasers, Jammers, Nets, and Eagles: Drone Defense Is Still Illegal","authors":"Jacob Tewes","doi":"10.2139/ssrn.3304914","DOIUrl":"https://doi.org/10.2139/ssrn.3304914","url":null,"abstract":"Unmanned aircraft system (“UAS”) technology is advancing rapidly as entry costs continue to plummet, creating an extremely low barrier to entry for those who would use them for good or ill. Consumer off-the-shelf drones equipped with very basic modifications are mission-capable for a wide variety of malicious disruptions, diversions, or attacks. A civilian counter-drone industry is developing to address this threat, but it is hampered in the United States by a simple reality: nearly every means available to defend against a drone-borne attack is illegal on multiple, independent grounds. Some have already deployed this technology on an “ask forgiveness, not permission” basis, hoping that they will be pardoned for breaking these laws if they are ever forced to deploy their systems to avert a crisis. This Wild West approach to counter-unmanned aircraft systems (“C-UAS”) will inevitably produce a sub-optimal result. This article first offers a categorical taxonomy of the C-UAS currently in production and some of the most plausible systems in development. Second, it analyzes the legality of each category, and shows that deploying any of them as a civilian operator would incur potential civil and criminal liability. Third, it will examine some of the recent statutory and regulatory efforts to jump-start this industry, but demonstrate that these efforts fall short of remedying the numerous statutory barriers to legal counter-drone system deployment. Finally, it will offer several potential solutions to this problem, and principles that should guide whichever of those paths federal regulators opt to take. By proactively legalizing limited and responsible C-UAS use, we may yet avoid a crisis and its inevitable backlash. <br>","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129632910","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}

引用次数: 1

Examining the Legislation in China's Special Economic Zones: Framework, Practice and Prospects 中国经济特区立法研究:框架、实践与展望

Legislation & Statutory Interpretation eJournal Pub Date : 2017-11-01 DOI: 10.2139/ssrn.3227916

Yang Feng

{"title":"Examining the Legislation in China's Special Economic Zones: Framework, Practice and Prospects","authors":"Yang Feng","doi":"10.2139/ssrn.3227916","DOIUrl":"https://doi.org/10.2139/ssrn.3227916","url":null,"abstract":"The delegation of flexible legislative powers to China's five Special Economic Zones (SEZs) (经济特区) in the reform era was attributed to both the endorsement of the Chinese central government and the strong commitment of SEZ officials. SEZs serve as a petri dish where market-oriented legislation was introduced and practiced, and later spread to elsewhere in the country. They ultimately gathered the momentum for turning the tide of contestation in the domains of ideology, economy and policy in favor of a market system, and created conditions favorable for the market-oriented legislation at national level. A more significant impact of SEZ legislation is that it serves as one of the main sources of reference for national legislation on the market economy. The SEZ legislation provides a series of rules on the market economy that are later written into national laws and regulations. Consistent with the increase of national legislation in number, SEZ legislation tends to lose its significance. Nevertheless, after three decade’s legislative practice, SEZ officials have created a unique reformist identity that is crucial for introducing legislative reforms in other domains critical to China’s long-term stability and development.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133944488","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}

引用次数: 1